Mr Andrew Andrews discusses the importance of legalities in body contouring and wellness
Patient expectations and demands can often be unrealistic, and if these impractical expectations are not identified at the outside, disappointment—which very often turns to irritation—is inevitable. Patients as individuals have autonomy and the right to self-determination, and may on occasions make what we perceive to be an unwise decision, because the bottom line is they know what is best for them. However, part of your role as a clinician is to work in partnership with your client to educate and empower that individual, to make balanced informed decisions for themselves. We should remind ourselves though, that ultimately in the eyes of the law—you must be able to clinically justify every intervention.
It’s not for the patient to dictate how you will discharge your clinical responsibilities for them. Patients have a choice when they opt to have a procedure, but they cannot determine how you will discharge your clinical responsibilities to them. Many find it very difficult to understand that they cannot direct how you discharge your legal duty of care, which rests with you as a matter of professional clinical judgement.
As a practitioner on a professional register, you cannot plead superior orders. It’s no good saying, my boss told me to, I was persuaded to, my colleagues thought this would be for the better, it’s what the client wanted, or I was just following policy. The only justification for action is that you used your professional and clinical judgement.
I would like to cite an interesting case: two women, both NHS patients who wanted elective caesarean sections for social reasons. The first woman said she needed to be delivered so she and her husband could go off on their expensive holiday and leave her new baby with her mother. The second woman wanted an early caesarean section to prevent unnecessary weight gain and possible future loss of figure. In both cases their consultants agreed. Post-operatively they were left with very rare, but recognised complications of that intervention. One of the women is unable to have more children; the other has continuing problems with dysmenorrhea. They both acknowledge they knew of and accepted those risks. They had not thought to challenge the quality of surgeon, but they have both sued their consultants alleging negligence—saying that as experienced clinicians, the consultants knew that there was no clinical justification for that intervention. They claimed that had the consultants discharged their professional responsibilities—as they ought to have—and refused to carry out the procedure and acted in that professional way, the women would have been saved from the consequences of their procedures. Both women won their cases.
In the UK National Health Service, practitioners write the menu, patients can accept or reject what is on offer. In the case I just shared with you, clearly that c-section should not have been on offer, because for something to be available in the NHS there must one—be a therapeutic benefit, and two—a reasonable prospect of success. If those two criteria are not met, it’s not on offer.
Interestingly, in the private sector, there is more leeway and instead of therapeutic benefit it’s for welfare and wellbeing of the individual. So provided that threshold is met—welfare and wellbeing, plus reasonable prospect of success, you could have it on offer. Ironically, in the above case, had those two women gone to the private sector and paid, it would have ticked the box for welfare and wellbeing and they’d have no redress.
Let this be a reminder that with anything you offer, you must to be satisfied that it is for the welfare and wellbeing of the individual and there is a reasonable prospect of success. That’s why, the NHS does very little in the way of plastic surgery—it’s limited to post-operative, post-trauma, psychiatric, psychological. If a woman wants to enhance her appearance, it’s not available on the NHS, patients must go to the private sector and buy that.
It’s vital to make that distinction—will the procedure increase the client’s welfare and wellbeing? If it doesn’t meet that criterion, or there is no reasonable prospect of success, it’s not something you will offer that individual. What you offer has got to be based on your professional and clinical judgement. And of course, when you make an offer, you’ve also got to ensure that you have shared with that individual the risks and benefits of what is proposed. When you think about consent, this is simply the individual’s agreement to what is proposed. To make a balanced, informed decision, they also need to know the risks, benefits of intervention, alternatives or possibly non-intervention.
An individual will want to know what your track record is like with the intervention they have are seeking. So when you share the risks, how do you explain likelihood? I know there are practitioners who use percentages, but that can be confusing for some people. I know one practitioner who would say there’s a one in 20 chance of this happening, and clients’ response was “oh don’t like the sound of that”, yet when he translated that to a 5% risk, suddenly that was ok. Isn’t that interesting? That 5% seems more acceptable; one in 20 makes you stop and think.
I’d never say 50/50, I’d say every other person, because that’s something to which the individual can easily relate. If there are catastrophic risks—so something which is irreversible, or may adversely affect the quality of life—then you need to be very clear that you put that in context and that you’ve raised it with the individual. What you don’t want is someone to say they were tricked into agreeing and had they known what they have since found out they would never have agreed to proceed.
Informed consent is a North American concept—and one I am certainly not an advocate of. It means that you will share with that individual every conceivable risk and outcome, no matter how unlikely, or how remote. That’s fine if you want to do it, but just to give you an example, a friend of mine in Massachusetts needed fairly urgent surgery to remove his appendix. They wouldn’t proceed until he assured them that he read and understood a 48-page booklet with all the possible risks. When he signed that off they brought another six sheets of risks that had been identified since that leaflet was published.
The problem I see with informed consent is that after confirming disclosure of every conceivable risk and outcome, no matter how unlikely or remote—and you presumably do a weekly literature search to ensure the information is up to date—should that individual do a web search and find things you haven’t mentioned, the consent is not valid.
We want patients to make an informed decision but we need their agreement. UK law says you share with the individual the nature, purpose and likely outcome of what is proposed, not every conceivable no matter how unlikely or how remote, but those which are material to the individual. So please talk about consent, but if you want to put a word with it, use valid or effective consent, not informed consent. And obviously, if there are catastrophic risks, you put them in context. As I said to a patient, just visualise a Wembley stadium packed, double that, one of those people is likely to experience an adverse outcome to what I’m talking about. So you can put it in context so they’re not unnecessarily frightened.
If a clinical case goes to court, what matters in court is proof, or evidence. Cases are won and lost on the quality of the documentation. In an ideal world the consent process would involve simply taking the individual through a pre-prepared consent leaflet and script. This would allow you to document that you’ve taken the patient taken through leaflet, given the leaflet, that they’ve agreed to proceed etc. So, that leaflet saves an enormous amount of documentation because you simply say, I always take the individual through, deal with their questions in context and they had the leaflet to keep, and that’s all documented.
Remember while adults can make unwise decisions, children cannot, and the role of trustees is to safeguard the basic rights of the child, their life, health, education and protection and if a trustee is not fulfilling that role the State will intervene. The Children Act says the views of the child shall be taken into account, having due regard to age and understanding. So the child has a right to be heard, but not a right to self-determination.
The UK law allows a 16 year old to give their own consent, but it doesn’t invalidate the legal position of someone with parental responsibility. So from age 16 to 18, two consents are possible—either the young person or someone with PR (Parental Responsibilty). With consent, either can say yes, but neither has a power of veto. So if a young person agrees, the parent cannot veto, conversely, if the parent has agreed, the child cannot veto because the law takes the view you wouldn’t be offering anything which wasn’t in the child’s best interest and you don’t want the child therefore to be denied that best interest option.
Below age 16 we also have the concept of Gillick competence, where a child can say I don’t want my parents involved. If you raise the question of whether a 15 year old would like mum and dad involved and they say no, then you’ve got to be satisfied that they have the capacity to make that decision and that you believe it’s in the child’s best interest. And if those three criteria are met, you can proceed on the basis of the child’s consent without involving the parents.
The bottom line is—no matter where you are—ask yourself, can I justify my decisions, my actions to my professional colleagues? Or put another way, will the profession endorse what I have decided to do?
I hope this has given you an insight into this legal perspective. Remember that law, morals, ethics and professional considerations will all pull you in different directions, it’s up to you to resolve that tension and then decide how best to proceed.
Andrew Andrews MBE is a Barrister and Director of Health and Social Care