Examining patients with their consent

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

In the United Kingdom, all operations performed within any surgical speciality under general anaesthesia require consent from patients with capacity; or are performed only in the best interests of those without capacity, in terms set out within the General Medical Council’s guidance from 2008.

To this group of procedures that require consent should be added any other interventions performed on the patient whilst conscious that would not, in normal circumstances, be performed by a person without a clinical qualification or training.

In this way, the patient’s consent legitimises an act that he or she entrusts to a practitioner because the practitioner is a clinician. In this way, our clinical regulators provide patients with a degree of certainty that the operator is capable of performing the procedure.

It is less easy to set a threshold above which consent is required for simple physical examination. It has always been the case that seeking permission to examine a patient has been considered an exercise in basic good manners. Striding in to the room, pulling back the sheets and placing the cold examining hand on the surprised abdomen without uttering a word is now unacceptable. Bearing in mind that valid consent is based on what the reasonable person would want to know, little needs to be disclosed. ‘May I examine your tummy?’ generally suffices for disclosure…and the oral agreement is quite enough. No forms or records required just civilised behaviour. In living memory, vaginal and rectal examinations were performed without consent on anaesthetised patients solely for the purpose of teaching. This is no longer permitted, but if digital rectal or vaginal examination is foreseeable during a procedure under general anaesthetic, should explicit consent be obtained?

It is unlikely that any surgeon would attempt such an examination in the conscious patient without obtaining their consent. Why would you not do so preoperatively? It will not involve significant revelations; you need to do a rectal because the anal canal and lower rectum must be evaluated; complications are unlikely, and if they occur, they will be transient. There is no practicable alternative to this invasion.

This will not make the overall disclosure for surgery or its record significantly more onerous. It would seem prudent, on the same grounds, to disclose the need for a foreseeable urinary catheter, and record the forthcoming consent.

Meanwhile, in the outpatients, should the patient’s consent for rectal be recorded? There is ample evidence in the press that predators, including surgeons, have used their influential status unlawfully to commit intimate assaults. If you would rather establish evidence that you had obtained oral consent from the patient, you could without difficulty include that fact in the notes, or in the letter that recorded the consultation. It seems probable that employing Trusts (and private hospitals) may soon decide that this practice is essential for their own protection, if not for that of their employees.

And the hinterland between examination and surgery? Venepuncture, venous and arterial cannulae, chest drains, lumbar punctures; all plainly require oral consent, but the complexity of the necessary disclosure varies widely according to the circumstances. For this reason, there is wide variation of attitudes to recording this oral consent that all fall within the bounds of reasonable practice. A simple rule is to record in proportion to complexity. A patient’s oral consent for routine venepuncture will rightly go unrecorded (unless their religion solemnly forbids blood-letting). But faced with a coagulopathic patient with who would only marginally benefit from a chest drain, the balancing act between risk and benefit could lead to stark choices. Here, recording the disclosure and consent on a form might seem prudent. As always, a matter for clinical judgement.

Robert Wheeler
Department of clinical law, August 2016