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Legally Valid Consent 3
• The likely benefits and probabilities of success for each option
• Known possible side effects or risks of treatment: decide what
information about risks a ‘reasonable person’ in the position of the
patient would want to know before agreeing to treatment. Doctors should
be alert to the particular concerns or priorities of the individual patient
and risks which may be significant for that patient must be discussed,
even if the likelihood of occurrence is small.
• The name of the doctor who will have overall responsibility
• A reminder that patients can change their mind at any time.
Obtaining consent
The clinician providing the treatment or investigation is responsible for
ensuring that the patient has given valid consent before treatment begins.
Consent may be verbal (e.g. for venepuncture) or written (e.g. always for a
surgical procedure). However, it should be remembered that a signed consent form is not legal or professional proof that proper informed consent has
been obtained. The person obtaining consent should be the clinician who is
doing the procedure or an assistant who is fully competent to carry out the
procedure and therefore understands the potential complications. It is not
acceptable for a junior doctor who does not regularly perform and therefore
fully understand the procedure to obtain consent.
Special circumstances
Adults who lack capacity to consent
In an emergency situation, doctors treating an adult patient who lacks capacity to consent to treatment can legally administer treatment if it is necessary
to save their life, or to prevent them from incurring serious and permanent
injury.
The treatment of adults who lack capacity is governed by the Mental
Capacity Act (MCA) 2005 in England and Wales and the Adults with
Incapacity (Scotland) Act 2000 in Scotland. Doctors treating patients who
lack capacity to consent to treatment must decide if the proposed treatment
is in the overall best interests of the patient. This assessment goes beyond
the patient’s medical interests and should take account of their wishes or
preferences if these can be ascertained. The proposed treatment should be
discussed with the relatives (if appropriate) in order to obtain an indication
of what the patient’s wishes or preferences would be, but family should not
be asked to provide consent. However, patients may appoint a proxy decision
maker (e.g. lasting power of attorney) with the legal authority to express
consent or refuse treatment on their behalf in the event of incapacity. Any
treatment(s) provided in the patient’s best interests should be proportionate,
i.e. offer a reasonable chance of benefit without being overly burdensome,
and should be the least restrictive option available.
4 Ethics and communication
Advance decisions
Competent adults acting free from pressure and who understand the
implications of their choice(s) can make an advance decision (sometimes
known as a living will) about how they wish to be treated should they lose
capacity. The advance decision should be a clear oral or written instruction
refusing one or more medical procedures, or a statement that specifies a
degree of irreversible deterioration after which no life-sustaining treatment
should be given (advance decisions to refuse life-sustaining treatment must
be written and witnessed). An advance decision cannot be used to demand
treatment or refuse basic care. Advance statements are binding provided
that the patient criteria outlined above are fulfilled, the statement is specific
and clearly applicable to the current circumstances and there is no reason
to believe that the patient has changed their mind. Where ambiguity exists
about the validity of an advance decision, the presumption should be to save
life. Advance decisions have different legal force within the UK and doctors
should familiarize themselves with the relevant legislation in the jurisdiction
in which they work.
Children
In the UK, the legal age of presumed competence to consent to treatment
is 16 years. Below this age, those with parental responsibility are the legal
proxies for their children and usually consent to treatment on their behalf. In
the absence of someone with parental responsibility, e.g. in an emergency
where urgent treatment is required, doctors can proceed on the basis of the
child’s best interests. Some children under 16 years may be able to legally
give effective consent to medical treatment provided they have sufficient
understanding and intelligence (so-called Gillick competence). At any age,
an attempt should be made to explain fully the procedures and potential outcomes to the child, even if the child is too young to be fully legally competent.
Teaching
It is necessary to obtain a patient’s consent for a student or observer to sit
in during a consultation. The patient has the right to refuse without affecting
the subsequent consultation. Consent must also be obtained if any additional
procedure or examination is to be carried out on an anaesthetized patient
solely for the purposes of teaching. Additionally, consent must be obtained if
a video or audio recording is to be made of a procedure or consultation and
subsequently used for teaching purposes.
Human immunodeficiency virus testing
Doctors must obtain verbal consent from patients before testing for human
immunodeficiency virus (HIV); however, lengthy pre-test counselling is no
longer necessary. The offer of HIV testing should be within the competence
of any qualified healthcare professional. In rare circumstances such as in
Confidentiality 5
unconscious patients, HIV testing can be carried out without consent where
testing would be in the patient’s immediate clinical interests, e.g. to help
make a diagnosis and direct treatment.
End-of-life decisions including assisted dying
Competent patients can refuse life-sustaining treatment. Similarly, a patient
who lacks capacity may have a valid advance decision or proxy decision
maker who is authorized to refuse treatment on their behalf. For patients who
lack capacity without an advance decision or proxy decision maker, decisions
at the end of life are made as per other treatment decisions on the basis of
best interests. Treatments may be lawfully withheld or withdrawn towards
the end of life if they are deemed to be physiologically futile (e.g. will not
confer significant benefit) or burdensome. Such decisions should be made in
consultation with the multidisciplinary team and those closest to the patient.
The team is acting in the patient’s best interests where the intention is to
reduce suffering, rather than to deliberately end life, which would constitute
murder. In ethical terms, it is the nature of the doctor’s good intention and
the moral status of withholding/withdrawing treatment (which are classified
as omissions) that differentiates these practices from acts of assisted dying
(where the intention is to end life) which are unlawful in the UK.
Cardiopulmonary resuscitation
Decisions about cardiopulmonary resuscitation (CPR) should be made in
consultation with the patient (or their representatives if they lack capacity),
unless discussing this would cause significant harm. Harm must constitute
more than the patient getting upset. A ‘do not attempt CPR’ (DNACPR) order is
appropriate when a patient refuses CPR or when it offers no realistic chance
of success. If CPR might be successful it may still be inappropriate due to the
likelihood of adverse outcomes based on the patient’s current circumstances.
If it is not practical to discuss CPR with the patient or their representative
and a decision is needed, the decision should be discussed at the earliest
practicable opportunity. Discussions about CPR should form part of a wider
discussion about goals of care and the type of treatment(s) patients wish to
receive in the event of deteriorating health.
CONFIDENTIALITY
Confidentiality is an essential prerequisite for a therapeutic relationship.
Medical information belongs to the patient and should not be disclosed to other
parties, including relatives, without the informed consent of the patient. Doctors
who breach confidentiality may face legal and professional sanctions. However,
the duty of confidence may be breached if disclosure is required by law or is
justified in the public interest. In the UK, guidance on such circumstances is
available from the GMC. In this event, doctors should seek patient consent
for disclosure. Where a breach of confidence is justified, patients should be
6 Ethics and communication
informed (where appropriate) about the doctor’s intention to breach and disclosure should be proportionate and limited to those who need to know. Doctors
should be able to justify their decision to breach confidentiality.
COMMUNICATION
Patient-centred communication improves health outcomes and symptom
resolution, increases patient adherence to therapies, increases patient
and clinician satisfaction, reduces litigation and enhances patient safety.
A relationship based on trust and mutual respect allows information to be
exchanged to reach a shared understanding between the patient and their
doctor about the illness and/or its treatment. Most complaints against doctors
are not based on failures of biomedical practice but on poor communication.
Patients identify the following features of a good consultation:
• Explanation of the process to the patient
• Asking the patient relevant questions to formulate a diagnosis
• Asking patients to express their opinion
• Use of active listening techniques and avoidance of inappropriate
interruptions
• Tailored explanations followed by a check of the patient’s understanding
• Sufficient time allowed for the interview.
The medical interview
There are seven essential steps in the medical interview (the following
applies to a first consultation):
1. Building a relationship
Good first impressions are vital. This will be helped by well-organized
arrangements. The doctor should come out of the room to greet the patient,
establish eye contact and shake hands if appropriate. Clinicians should tell
patients their name, status and responsibility to the patient. The clinician
should sit beside the patient and not on the far side of a desk to convey
interest and engagement.
2. Opening the discussion
The aim is to address all the patient’s concerns (usually they have more than
one). Start by asking a question such as: ‘What problems have brought you
to see me today?’ Listen to the answer without interrupting, then ask ‘Is there
anything else?’ to screen for problems before exploring the history in detail.
3. Gathering information
The components of a complete medical interview are: the nature of the key
problems, timing of symptom onset, development over time, precipitating
factors, help given to date, impact on the patient’s life and availability of
Communication 7
support. The clinician should use non-verbal cues to encourage the patient
to tell the whole story in their own words. Start with open questions (e.g. ‘Tell
me about the pain you have been having’ rather than ‘Where is your chest
pain?’). Then move on to screening (e.g. ‘Is there anything else?’). Leading
questions (e.g. ‘You have given up drinking alcohol, haven’t you?’) should
be avoided.
4. Understanding the patient
Empathy is a key skill in building the patient–clinician relationship and
involves the patient’s experiences being recognized and accepted with
some feedback to demonstrate this. Some patients may need encouragement, e.g. ‘What were you worried this might be?’. Be alert to non-verbal
cues, for instance, ‘You look worried, what are you concerned might be
causing this pain?’. Doing so demonstrates the patient’s concerns have
been recognized.
5. Sharing information
Patients generally want to know whether their problem is serious, how will
it affect them, what is causing it and what can be done. Verbal information
can be supported by leaflets, patient support groups and reputable websites. Verbal information is best provided in assimilable chunks in a logical
sequence, using simple language and avoiding medical terminology. It is
helpful to check that the patient has understood what has been said before
moving on to the next section of the information.
6. Reaching agreement on management
The clinician and patient need to agree on the plan for investigations and
treatment. Some patients will want to be more involved than others. The
clinician’s opinion and the patient’s views on management options should be
discussed to negotiate a plan together. Summarizing at the end will allow any
misunderstandings to be corrected.
7. Providing closing
Closing the interview may start with a brief summary of the patient’s agenda
and then that of the clinician. The patient should be told the arrangements for
follow-up and the commitment to informing other healthcare professionals
involved with the patient’s care. It is important to record what the patient has
been told in their notes. It can be helpful if the patient knows how to contact
an appropriate team member as a safety net before the next interview. The
interview is closed with an appropriate farewell.
Breaking bad news
Breaking bad news can be difficult, and the way that it is broken has a major
psychological and physical effect on patients. Patients often know more
8 Ethics and communication
than the doctor thinks they do. They welcome clear information and do not
want to be drawn into a charade of deception that prevents discussion of
their illness and the future. The S-P-I-K-E-S strategy sets a framework for
breaking bad news:
• S – Setting. The patient should be seen as soon as information is
available in a quiet place with everyone seated. Ask not to be disturbed
and hand pagers/phones to a colleague. If possible the patient should
have someone with them and be introduced to everyone who is with you.
Indicate your status and the extent of your responsibility towards the
patient.
• P – Perception. Begin by finding out how much the patient knows and if
anything new has developed since the last encounter.
• I – Invitation. Indicate to the patient that you have the results, and ask
if they would like you to explain them. A few patients will want to know
very little information, and they will indicate that they would prefer for
you to talk to a relative or friend.
• K – Knowledge. The clinician should give the patient a warning if the
news is bad (e.g. ‘I am afraid it looks more serious than we had hoped’)
before giving the details. At this point, pause to allow the patient to
think this over and only continue when the patient gives some lead
to follow. The clinician should give small chunks of information and
ensure that the patient understands before moving on. Pauses allow
the patient to think and ask questions. The patient should be provided
with some positive information and hope tempered with realism: for
instance, emphasize which problems are reversible and which are not.
The importance of maintaining a good quality of life should be stressed.
It is often impossible to give an accurate time frame for a terminal
disease, but survival rates should be discussed if the patient wants to
know these.
• E – Empathy. The clinician will need to respond appropriately to a range
of emotions that the patient may express (e.g. denial, despair, anger,
bargaining, depression and acceptance). These must be acknowledged
and, where necessary, the clinician should wait for them to settle
before moving on. Sometimes the interview will need to be stopped and
resumed later.
• S – Strategy and summary. The clinician must ensure that the patient
has understood what has been discussed. Written information may be
helpful. The interview should close with a further interview date set
(preferably soon) and the patient provided with a contact name before
the next interview and details regarding further sources of information.
The clinician should offer the patient the opportunity to meet their
relatives if they could not be there at this time. A written summary
should be recorded in the patient’s notes detailing accurately what was
said and to whom.
Communication 9
Communication in difficult circumstances
When things go wrong
The professional duty of candour requires doctors to be open and honest when
something goes wrong in the care of a patient that causes, or has the potential
to cause, harm or distress. In such circumstances, the doctor should offer the
patient (or those close to the patient if the patient lacks capacity) a full apology,
an explanation of the consequences of the harm and a remedy to put matters
right. An apology is an expression of regret, not an admission of liability, and
may reduce the likelihood of a formal complaint. Any clinician faced with legal
action must seek specialist advice. The professional duty of candour also
involves being open and honest with colleagues, employers or other relevant
organizations in disclosing adverse events or near misses to encourage a culture of learning which fosters patient safety. Doctors should always follow their
organization’s clinical governance procedures for reporting and investigating
incidents and should not stop someone from raising concerns.
Complaints
Many complaints result from poor communication or miscommunication.
The majority of complaints stem from the exasperation felt by patients who:
• Have not been able to get clear information
• Feel that they are owed an apology
• Are concerned that other patients will go through what they have
experienced.
Complaints should be dealt with as soon as possible. Be honest and never
alter the medical records.
Culture and communication
Patients from minority cultures tend to get poorer healthcare than others of
the same socioeconomic status, even when they speak the same language.
Consultations tend to be shorter and with less engagement of the patient by
the clinician. Cultural issues may affect a patient’s behaviour, e.g. when to
seek medical care or willingness to discuss sensitive topics. If an interpreter
is required this should not be a family member. Advocates (interpreters from
the patient’s culture who can do more than translate by putting explanations
in culturally relevant terms) should be used wherever possible. The clinician
should still speak directly to the patient rather than the interpreter.
Patients with impaired faculties for communication
Patients with impaired hearing may require help from a signer. If they
can lip read, this can be facilitated by the use of good lighting, plain
10 Ethics and communication
language and by checking patient understanding. Conversation aids
(microphones and amplifier, adapted textphones) can help. Patients with
impaired vision will be helped by large print or Braille information sheets.
Clinicians should remember these patients can miss non-verbal cues, so
sudden touch during the interview should be avoided. For patients with
dysphasia, closed questioning is often helpful with a few key headings
written down. Speech and language therapists can be very useful for
patients with dysphasia.
Medical record keeping
Clinical notes should contain a complete record of every encounter with the
patient (including results, information given to the patient obtaining consent, treatment prescribed, follow-up and referrals) and a summary of any
discussions with relatives (after obtaining patient consent). Strict guidelines
regarding communication with patients via email or text exist in all trusts
and it is important that you familiarize yourself with the policy of your local
trust. As a general rule, emails should only ever be sent from/to NHS email
accounts.
Patients have a legal right to see their records, and these are an essential
part of the investigation into any complaint or claim for negligence. Criteria
for good records are:
• Clear, accurate and legible
• Every entry should be signed, dated and time of consultation recorded.
The healthcare worker should also print their name and record where
they have seen the patient, e.g. emergency department, ward name.
• Entries should be written in black pen
• Records should never be altered. An additional note should be made,
signed and dated alongside any mistake
• Records should always be kept secure. Any patient details kept
electronically require the computer to be encrypted.
Computer records (electronic patient records, EPRs) are increasingly
replacing written records; EPRs are more legible, contain more information
and reduce prescribing errors.
Team communication
Patients are frequently looked after by multiple healthcare professionals
across different teams. Good handover between teams is vital for patient
safety and can be facilitated by everyone adopting a clear system. Frameworks
such as the SBAR (Situation-Background-Assessment-Recommendation) use
standardized prompts to ensure relevant information is shared concisely
(Table 1.1).
Communication 11
Table 1.1 SBAR: a structure for team communication
S – Situation
B – Background The patient was admitted on … for …
A – Assessment Summarize relevant information gathered on
R – Recommendation
(examples)
My name is … I am the junior doctor on ward …
I am calling about Mr …, under consultant …
Thereason I am calling is …
Brief summary background: history, medications,
laboratory results, diagnostic tests, procedures
examination of patient, charts and results
Vital signs and early warning or similar score
What has changed?
Interpretation of this
I need your advice on how to proceed …
I think the patient needs urgent review in the
next… (time frame)
2
Infection remains the main cause of morbidity and mortality in humans,
particularly in developing areas where it is associated with poverty and
overcrowding. Although the prevalence of infectious disease has reduced in
the developing world as a result of increasing prosperity, immunization and
antibiotic availability, antibiotic-resistant strains of microorganisms and diseases such as human immunodeficiency virus (HIV) infection have emerged.
Increasing global mobility and climate change have aided the spread of infectious disease worldwide, as exemplified by the COVID-19 pandemic. In the
elderly and immunocompromised, the presentation of infectious disease may
be atypical, with few localizing signs, and the normal physiological responses
to infection (fever and sometimes neutrophilia) may be diminished or absent.
A high index of suspicion is required in these populations.
Notification of specific infectious diseases is a legal requirement in the
UK (Table 2.1) and reporting of certain infections is international practice.
These are indicated in the text by the superscripted abbreviation nd where
appropriate. Scotland and Northern Ireland have slightly different reporting
practices. Notification includes reporting the patient’s demographic details
along with the disease that is being reported. This allows analyses of local and
national trends, tracing of the source and the prevention of spread to others.
Registered medical practitioners should notify the local health protection team
of a patient attending who is suspected to have a notifiable disease.
Infectious diseases
Common investigations in infectious disease
• Blood tests. Full blood count (FBC), urea and electrolytes (U&Es), liver
function tests (LFTs), coagulation screen and inflammatory markers
(erythrocyte sedimentation rate (ESR) and C-reactive protein (CRP)). CRP
is a non-specific marker of inflammation and is raised in many different
infections and in acute and chronic non-infection conditions associated
with inflammation. It is more useful in monitoring response to treatment
than in making a diagnosis.
• Imaging. X-ray, ultrasound, echocardiography, computed tomography (CT)
and magnetic resonance imaging (MRI) are used to identify and localize
infections. Positron emission tomography (PET) (p. 72) and single photon
emission computed tomography (SPECT) have proved useful in localizing
infection, especially when combined with CT. Biopsy or aspiration
of tissue for microbiological examination may also be facilitated by
ultrasound or CT guidance.