The right to decline or withdraw consent for treatment is fundamental in the ethics of modern medicine. As a general principle, a patient with decision-making capacity should not receive treatment in the absence of informed consent. However, this obligation is also enshrined in South African law, write Dr Lucy Gibberd, medico-legal consultant, and Dr Graham Howarth, Medical South Africa lead at Medical Protection.
They write:
Section 7 of the National Health Act states that in the absence of some clearly articulate legal caveats, a health service may not be provided to a user without the user’s informed consent.
Further, Section 6 of the National Health Act is instructive regarding the principles of the information that should be imparted to a patient. This section states that unless it would be contrary to the patient’s best interest, he or she should be informed of their health status and of the diagnostic and treatment options generally available as well as the benefits, risks, costs and consequences generally associated with each option.
In addition, every healthcare provider must inform a patient of their “right to refuse health services and explain the implications, risks (and) obligations of such refusal”.
This means that if a patient declines a management option that a doctor suggests, their obligations do not end there – they are obliged to explain the possible consequences of such a decision.
The fact that this is included in the right concerned with informed consent shows how important it is that a patient should be fully informed if they decline consent to treatment.
Right to decline
Patients with decision-making capacity have the right to decline treatment, even if their treating clinician thinks this decision is unwise, dangerous or even foolhardy. If, however, the clinician considers that the patient lacks decision-making capacity, this must be clarified.
If the patient lacks decision-making capacity, other options for consent or authorisation for treatment, as laid out in Section 6 of the National Health Act, need to be considered.
Doctors might think that when a patient declines to undergo an operation or a treatment, their obligations finish there, but this is not the case. Every year Medical Protection sees complaints which arise after patients decline treatment.
In one example, a patient on immunosuppressive treatment after transplant surgery, presented with a biopsy-proven, histologically aggressive, squamous cell carcinoma near the bridge of his nose.
When the patient presented for a wide excision, the lesion was not visible to the naked eye, as it had been largely removed by the biopsy. The patient questioned why further surgery was necessary and said he did not want to go ahead unless the surgeon could guarantee he would ‘get it all out’.
The surgeon explained he could not make that guarantee and so the patient declined to go ahead with the surgery and opted for ‘close observation’ as an alternative.
When the cancer later became locally invasive and required majorly disfiguring surgery, the patient complained that his rejection of treatment was not fully informed, as he had not been aware of the possible consequences of declining surgery.
The issue in this case is that the patient had initially agreed to the wide excision and only declined to proceed during a discussion in the pre-op area. The patient was having other skin surgeries that day and the other procedures went ahead.
Because the discussion occurred in the pre-op area, it was not well documented and there was nothing in the notes recording that the patient had been told about the possible consequences of not going ahead with surgery. The surgeon in this case clearly could not proceed with the recommended surgery, in the face of the patient’s withdrawal of consent – but what could he have done to avoid a complaint?
It is not uncommon for conversations that occur in a pre-op area to be poorly documented. Often the patient is being seen in between cases in theatre, there may be no facilities to dictate or record a file note, and it may not be obvious where such conversations should be recorded.
There may also be concerns about the patient’s capacity to make a reasoned decision in this situation, particularly if they have been given a pre-med. If a patient declines treatment in this situation, it is probably better to arrange to meet them later and have a full, documented discussion about the possible consequences of declining the treatment.
If the patient does not wish to agree to or attend such a follow up meeting then a letter to the patient (and GP) recording the discussion, the matters set out below and the offer of a follow up consultation, should be sent.
Doctors are now increasingly aware that when they are ‘consenting’ a patient to have a procedure or treatment, they must carefully record the possible complications which have been explained to the patient. However, when a patient is declining a recommended treatment, it is probably even more important that the conversation is carefully documented, and the documents are retained.
Medical Protection would recommend the following:
• There should be clear written documentation that the patient has been offered a treatment but has declined it.
• There should be documentation that the possible consequences of declining the treatment have been explained to the patient, including the worst possible outcome.
• Alternative treatments should be discussed, and the pros and cons of these treatments should be discussed and documented.
• A follow-up appointment should be arranged to give the patient a chance to reconsider and to again discuss other treatment options.
• If possible, it is helpful if a relative or support person accompanies the patient to the follow-up appointment, both to support the patient, but also so the family is aware of the choices the patient has been offered.
• There is no legal requirement for the patient to sign a document saying they have declined treatment. In fact, good contemporaneous notes, where it is clear the patient has been warned of the possible outcome of declining treatment, are probably better than a signed document where this detail has not been clearly laid out.
• It should be made clear to the patient that if they were to change their mind in the future and wish to undertake the treatment, whether that may be possible and if so, what pathway the patient would follow to achieve this.
• Giving the patient written information about the proposed treatment is always helpful and exactly what has been provided should be documented in the notes.
• If there are any concerns that the patient may not have the decision-making capacity to consent or decline treatment, a formal competence assessment is advisable.
This is general advice. All doctors are advised to speak to Medical Protection or their indemnity provider if they are unsure about their obligations when a patient does not give their informed consent.
See more MPS columns from MedicalBrief archives:
Understanding why and how to manage patients’ expectations
How to navigate medico-legal matters in healthcare practice