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Professional Practice and Ethics Blog

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18/05/2016 14:54:48

Informed consent - the new law

 

Dr Clementine Maddock

Consultant Psychiatrist, ABMUHB. Called to the Bar at Gray’s Inn 2014

 

 

Following the case of Montgomery v Lanarkshire Health Board, in 2015, doctors are now under a legal obligation to provide a patient with individualised risks about their treatment and alternatives to treatment. 

 

If a doctor should fail to do so, and the patient suffers harm as a result of this failure to inform, then a successful negligence claim may result.

 

 

What is the Montgomery Test?

The Montgomery test places a legal obligation upon clinicians to provide information to patients about their treatment.

 

The Montgomery test was defined in the case of Montgomery v Lanarkshire Health Board.[1]  Lanarkshire Health Board was found liable in negligence as Mrs Montgomery was not adequately informed about the risks associated with a vaginal delivery and her baby suffered harm as a result of this undisclosed risk.

 

The Montgomery Test

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. [2]

 

What is a Material Risk?

The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to it.[3]

 

What does this mean for my practice?

The assessment of whether a risk is material cannot be reduced to percentages.

Information must be understood by the patient.

Document that the patient understands:

•        Seriousness of their condition;

•        Anticipated benefits and risks of treatment; and

•        Any reasonable alternatives to treatment.[4]

 

Exceptions to the duty to disclose information:

•        Patient has made it clear that they do not want to know the risks; [5]

•        Telling the patient the risks would be seriously detrimental to the patient’s health. This “Therapeutic exception”, should not be abused; [6] and

•        Necessity, if the patient requires treatment urgently but is unconscious or unable to make a decision.[7]

 



[1] [2015] UKSC 11

[2] [2015] UKSC 11 at para 87.

[3] Ibid.

[4] [2015] UKSC 11 at para 89.

[5] [2015] UKSC 11 at para 85.

[6] [2015] UKSC 11 at paras 85, 88, and 91.

[7][2015] UKSC 11 at para 88.
17/02/2016 17:17:18

Message from the new Chair of the Professional Practice and Ethics Committee - Dr Mayura Deshpande

 

PPEC Chair

I am delighted to be the new chair of the Professional Practice and Ethics Committee (PPEC). I am a Forensic Psychiatrist and work with adolescents in a medium secure unit. Ethics and Professional Practice has been a long standing interest, and like many junior doctors, I did a diploma in Philosophy and Ethics many years ago. This interest led me to a Masters in Philosophy of Mental Health, which is ongoing. I joined the PPEC in 2014 and became chair earlier this year.

While few of us would question the relevance of Professional Practice Guidance to our everyday clinical work, ethics is unfortunately sometimes seen as an optional extra. I have even heard it said that as we have clinical governance, we no longer need ethics. While good processes and systems are undoubtedly needed, they alone cannot help us to work our way through vexing dilemmas. I firmly believe that governance and ethics are both equally necessary to help individuals and organisations to work out how to do the right thing for our patients, when we are faced with choices that are equally unpleasant or inadequate.

 

The Role of the PPEC

PPEC provides guidance on matters relating to professional practice and ethics, focussing particularly on confidentiality, conflict of interest, probity and on translating policy into practice.

But PPEC also aims to keep abreast of new developments in the field of clinical ethics and to ensure that the appreciation of the ethical dimension of everyday decisions underpins policy, guidance and clinical practice. Members of the PPEC are college members who have an interest or an expertise in matters of ethics and professional practice, as well as service user and carer representatives who also have similar experience and expertise.

 

Future Plans

We hope to continue to work on issues of confidentiality, probity and conflict of interests, as these are immediately relevant to our everyday practice. However, we also need to examine issues that are important to our patients and their families, such as the use of restrictive practices in psychiatry and resource allocation to mental health services. These issues have an immediate and urgent ethical dimension to them that we must acknowledge and examine.

We also hope to work more closely with other committees within the College for the benefit of trainees, and to establish stronger links with the other Royal Colleges so that issues pertaining to clinical ethics and professional practice are debated more openly. 

 

If you would like to get in touch with the committee, please email helen.phillips@rcpsych.ac.uk.

 

03/07/2014 15:17:10

Encouraging professional virtues: Code of Ethics published

SCPPE worked together to produce a Code of Ethics for the College and it was published earlier this year as a pdf document, which is free to download from the website.

 

The Code draws on the General Medical Council’s standards for doctors and the College’s report on Good Psychiatric Practice, and sets out 12 principles for psychiatrists. These aim to put the good of patients, their carers and their families firmly at the heart of psychiatrists’ practice. Although the Code has been written for psychiatrists, it is likely to be useful for other people working in mental health in both statutory and voluntary sectors, and will be of interest to service users and their families.

 

The first three principles are quoted below:

 

1.    Psychiatrists shall respect the essential humanity and dignity of every patient.

2.    Psychiatrists shall not exploit patients’ vulnerability.

3.    Psychiatrists shall provide the best attainable psychiatric care for their patients.

 

A short commentary accompanies each of the principles.

 

This is the first time that the College has published a Code of Ethics.

We have started to receive comments on it and we welcome any further comments.

 

25/02/2014 16:19:04

Recording information relating to risk

A woman with a paranoid illness has an injunction against her ex-husband to exclude him from the house. She says he is a violent criminal who has served long prison sentences, is a serious on-going physical threat to her and that she needs to move house as soon as feasible. As she is clearly ill, the psychiatrist cannot judge how credible a threat her husband is.

 

In order to assess the risk that the woman may be harmed, the psychiatrist seeks independent information about her ex-husband. The psychiatrist approaches the responsible manager and asks for a check of police records of the ex-husband – making it clear that he is not the patient, but may be a threat.

 

The check shows that he is a violent criminal and potentially a serious threat to the patient.  The psychiatrist wishes to store this information in her record, and asks how to do so. They are informed by “Risk Management” that this is outside policy and may compromise relationships with the police or worse.

 

What is opinion in this case? Is there any guidance relating to this?

 

Response

 

This response is not exhaustive but refers to a few key helpful publications.

 

The Pemberton Review (2008) stated the following in relation to information sharing:

 

‘Whilst both public and professionals are often told that the Data Protection Act does not inhibit agencies from sharing information, it does not positively encourage or require it, nor critically does it explicitly offer protection to those charged with making the judgements about sharing sensitive personal data in cases of suspected risk … this situation is not tenable. … the ACPO Domestic Violence working group … recognises that ‘any prevention-based risk management strategy should have as a core requirement effective, information sharing within and between agencies.' (ACPO lead Domestic Violence strategy paper 2008)’ (page 27)

 

The Forward of the ICO Data Sharing Code of Practice (2011) says:

 

‘Organisations that don’t understand what can and cannot be done legally are as likely to disadvantage their clients through excessive caution as they are by carelessness.’ (page 4)

 

The Information Governance Review (2013) is also relevant (for example, see pages 49-51), and updates information governance principles. Caldicott acknowledges that provider agencies may have become too concerned with confidentiality at the cost of public safety. She clearly states that sharing of information should be balanced against considerations of confidentiality.

 

Why does this information differ from any other third party information that might be obtained and stored in the patient’s record, but excluded from release if others request access to the notes? If the information has been obtained lawfully then it should be recorded lawfully, as it is in the interest, safety and wellbeing of the patient, and others working with her, to do so. Indeed if the “Risk Management” recommendation were to be followed and the woman came to harm then it is possible that the Trust might be held to be liable. The question of how to manage the information is one for the clinician and not for “Risk Management”.

 

Conclusion: It is clearly in the patient’s best interest that this information is stored and available to those treating this patient, perhaps in an emergency, or if her own psychiatrist is not available.

 

14/01/2014 15:34:02

Statement on Monitoring Patients’ Online World

 

We discussed this enquiry about the ethics of monitoring patients Facebook postings at the Special Committee on Professional Practice and Ethics.

 

We agreed the following:

 

  1. It is the case that this information (Tweets, Facebook and Tumblr postings in front of privacy settings) is in the public domain and not confidential.
  2. From an ethical standpoint, we felt it was not ethical to monitor patients’ Facebook, Tumblr, Twitter accounts without the patients’ express consent.  We felt that if this was to be done, the unit / service should have a written policy on what services would be monitored, how often, where and how the information would be recorded and what action would be taken on the basis of any information mined.
  3. From a practical point of view, we felt that monitoring such accounts would be difficult and potentially risky and that, on balance, that it was best not to do so, even though there might be clinically useful information.
  4. If patients knew this was a way they could directly or indirectly communicate with their therapist / treating team, would this interfere with face-to-face sessions? How often would monitoring be carried out? Which sites would be mined and would this just push patients to use other, less well-known sites? If information was posted that was sensitive or risky, such as suicidal intent, how would this be dealt with if it was discovered and what would be the implications of a posting being missed or not responded to?
  5. We felt it was important that we demonstrate consistent standards. Many clinicians, senior managers, chief executives and senior office bearers of the college now use these methods to promote themselves and their organizations; we should not discourage patients and carers from doing so.
  6. We anticipate that this advice and advice on the use of social media in general will need to be frequently updated as practice changes.

 

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Professional Practice and Ethics blog

Members of the College’s Committee share dilemmas at the sharp edge of professional practice and ethics