eSignature Acupuncture Medical Consent Made Easy

E signature acupuncture medical consent

what i want to do in the next 25 minutes or so is just to run through the evolution of the common law or judge made law basis of uh consent how it's evolved from berlin in the 1950s to montgomery in the present day so we'll look at some key cases and really the the take home messages at the end of the presentation are going to be that what we must impart to our patients are the material risks reasonable alternative or variant treatments as appropriate for a reasonable person in the patient's position and also that particular patient so going back to 1993 this is a case that i think many of you will have heard of this was a patient with chronic schizophrenia who was institutionalized who had a gangrenous foot and was refusing amputation that was deemed necessary uh as a life-saving measure so in court expert advice was sought from a forensic psychiatrist professor eastman in london and he came up with what you will recognize as defining criteria for capacity so here was an opinion in court before a judge and this was taken to be so useful that it became enshrined in legislation and of course is key to the mental capacity act so you can read the mental capacity act in full if you if you google it and so that there in his example of of how what started off within the common law became enshrined in legislation and of course the mental capacity act is of key importance because it's setting out preconditions to allow us to treat patients in their best interests so moving to ect and this is the ect suite that has just come back into use this week the problem has been lack of air changes down there which has meant that ect has been punctuating emergency cases at queens and of course the practice is tightly regulated and we've got standard operating procedures meticulously written by wing commander david evans but back in the 1950s it was a little bit different now i see that john davis is on the call and john is music guru of course and here we go the top rock and roll hits in 1957 all shook up and a whole lot of shaking going on so actually a couple of ect anthems were around when the case of bolum went to trial now mr bolam in august 1954 underwent unmodified ect so he didn't have an anesthetic didn't have any muscle relaxant drugs he was unrestrained on a couch and he sustained horrible bilateral acetabular impaction fractures and he sued and the key point about this judgment was that the expert evidence was equivocal meaning that whether or not a patient should be restrained or unrestrained to allow the seizure to exert its physical effects with uh with without restraint anesthesia was just coming into ect then and it may be a rather good thing that there was not many people dabbling in it in isolated locations who weren't trained but the judge mr justice mcnair summarized that if you're looking at negligence in general it's what a the standard is what a reasonable man in the circumstances would do unfortunately it's all male it's a reasonable man yet if it's negligence in the context of people with specific training working it's the test is the standard of the ordinary skilled man exercising to have that special skill and the test then is whether he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and this endures to this day poland's claim also included an allegation that he hadn't been warned of the risk of this terrible orthopedic injury and an expert told the court that he'd seen only one acetabular fracture in 50 000 cases it seems like there's an awful lot of ect going on because he he was aware of 250 000 treatments and had only been one acetabular fracture but the judge in 1957 said that if good medical practice did require a warning of the risk the court would have to be convinced that the uh claimant would not have taken the treatment so that was uh that was the standard in the 1950s so then we fast forward to 1985 and the case of sidoway and siddoway mrs siddoway this was redo neurosurgery and it was a c4 laminectomy and to phasotectomy for aminectomy and she was paralyzed uh following this operation the risk had been was deemed of as being less than one percent but she hadn't been warned of this risk the actual surgery was held by expert evan's evidence to have been non-negligent so in the house of lords four of the five law lords stuck with bolem from the fifties and they held that the non-disclosure because this this this is city way was was saying that she certainly wouldn't have had this operation if she'd been warned of the risk of being paralyzed the non-disclosure accorded with a practice accepted as proper by a responsible body of neurosurgeon a neurosurgical opinion and this afforded the defendant as in the hospital a complete defense to the claim so mrs siddaway uh her claim failed but there was one minority voice in the house of lords who was lord skarman now he was more famous uh for scarman report and to the riots of of 1981 but this was a minority view and he was decades ahead of his time he said he believed and he in his speech in the judgment the test is whether the doctor in advising his patient gave consideration to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes and he introduced the term of material risk that in the circumstances of the particular case a reasonable person in the patient's position would be likely to attach significance to the risk so we move now to a case that went to the house of lords in 2004 but it actually the the clinical event was in 1994 and the expert for uh miss chester was was mr firth from uh some of you will remember from from qmc and it's another spinal case i mean we can see that um spinal neurosurgery is uh is is fraught with potential bad outcomes so ms chester was a journalist and she underwent three level micro discectomies and suffered cord aquinas syndrome and the risk was held to be one to two percent now miss chester was very honest because she didn't say that if she'd been warned of a risk of cordoquino syndrome of one to two percent that she would never have undergone surgery she was very honest and said that she simply wanted to think about it and she would have delayed by a few days while she as a journalist rang a few friends in neurosurgery and and sought further opinion so it was accepted by the court that on a different day on the balance of probabilities she wouldn't have been injured because if something is a risk of one to two percent and you have it in another day you probably wouldn't have been injured so this was a case that hinged on whether somebody should be compensated for something where there was proven causation that failure to warn led to her injury simply because a one to two percent risk eventuated on the day she had it done and the house of lords here are beginning to embrace autonomy and dignity because they say that the right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles so it was accepted that the failure to warn hadn't actually caused the operation but because she had not been afforded the right to [Music] come back on a different day she ought to win the case and be compensated but just as lord scarman had a very significant minority opinion in siddhaway the minority opinion in chester was lord hoffman who's a big hitter in in the house of lords and he compared this consideration of the risk of sustaining a loss as in the injury he compared it with the evaluation of whether or not you might win when betting and he when gambling and he said this argument is about as logical as saying that if one had been told and entering a casino that the odds on number seven coming up at roulette were only one in 37 one would have gone away and come back next week or gone to a different casino so there was a very strong um negative opinion within the house of lords but we come now to the the landmark case of this millennium and this is the case of of montgomery and this is the one that has precipitated the rewriting of the of the association of anaesthetists uh guidelines and of course here we are in an era of of social media and twitter and um nadine montgomery is very active on twitter and she'll follow you back and you can actually have a little chat with her and she's more than happy because she's become an advocate of women's rights in in obstetrics and there's her pin tweet here is where i say what she having won this case she then went to study law at strathclyde in glasgow and here's this brilliant tweet where she says the awkward but proud moment when prof mcmanus discusses your case in class so she's snapped a picture of her case being uh presented to her her tutorial group so nadine montgomery is a lady of small stature type one diabetes mellitus had a big baby and in 1999 uh had a sort of obstetric nightmare of a shoulder dystocia symphysiotomy forceps and her son sam was born with cerebral palsy and the claim was she hadn't been offered the possibility of a caesarean section and so this went from edinburgh to the now supreme court of course the supreme court has replaced the house of lords and this is the key bit of the judgment is that the patient must be made aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments 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 reasonably be aware that the particular patient would be likely to attach significance to it so distilling the key messages and the this was the sort of full big complement of supreme court judges including lady hale who's just retired so it's about material risks reasonable alternative or varying treatments a reasonable person in the patient's position but also that particular patient and the gmc was invited in as an intervener because it was recognized that much of what was going to be considered has already 12 years ago been set out by the gmc so in fact it and many commentators have pointed out that that although montgomery is somewhat revered as a game changer it much of it has already been set out by our own uh regulator and i don't know we've all had the email from the gmc that this long-awaited revision of its decision-making and consent uh guidelines has been uh published and it's coming into effect uh exactly a month from now and having looked through it i can't honestly see that there's any anything uh revolutionary in here they have set out seven principles of decision making and consent but there's nothing radically new any of these uh seven principles so legal academics write and publish about judgments and so the conclusion really on montgomery is that it's eliminated this bowling test that is what it the consent is no longer about just what other responsible what a responsible body or reasonably competent practitioners would tell somebody bolem no longer applies to consent that's bells hill maternity hospital by the way where uh mrs montgomery had her had her son and lauren sutherland qc those of you who are active on on twitter uh she was junior council for mrs montgomery and uh so at el sutherland qc she writes a lot about this and really in summary uh montgomery is about the right to self-determination that everyone has the right to determine what should be done with their own body so that that really is where we are now as opposed to going back to to to sit away the details of materiality whether a risk is material and this is something that comes up quite a lot is people wonder well is it is wanted does one and a hundred matter does one in a thousand matter the the judgment does say that the significance of a given risk is likely to reflect a variety of factors besides its magnitude uh the the nature of the risk the effect which its occurrence would have upon the life of the patient the importance to the patient of the benefits sought to be achieved by the treatment the alternative available and the risks involved in those alternatives and i think a very important point for obstetrics where we have women with dubious retention of capacity on nitrous oxide and filled with opiate who pushed down the corridor towards theater for the category one section the doctor's duty is not fulfilled by bombarding the patient the technical information which she cannot reasonably be expected to grasp let alone by routinely demanding her signature on a consent form and i know at least one hospital in kent where a consent form is not thrust in front of a woman a pen put in her hand for the category one section because the validity of that action is is highly is highly dubious and if you want to read more about this materiality nigel poole is a qc who's just become a high court judge so he's probably going to have to stop doing his blogging but he reviewed a number of cases since montgomery and pointed out that a one in a thousand risk may or may not be material and it all depends on the circumstances there is no statistical threshold for materiality that is universal so montgomery also talks about withholding information as does the the gmc and i just want to dwell on one guideline which has been as far as i can gather very poorly publicized within our trust and this is a guideline about avoiding diagnosing and treating well leg compartment syndrome now the lead organization is the association of a a colloproptology so colorectal surgeons and of course well leg compartment syndrome doesn't mean tibial fractures this means people who walk into hospital have protracted surgery with the legs above the level of the heart and the importance of this document is that it sets standards for consent and the prevention of the condition but also what to do if it eventuates so here is a specific reference to montgomery and it's a very good example of uh of of invoking montgomery but in the author's view well like uh the the the needs and preferences of the patient should be considered so that where appropriate for example in an athlete or other active individual a discussion satisfying the requirements of montgomery can be undertaken and documented so we don't have to discuss with every patient who's having a laparoscopic colectomy that they may have a devastating lull in complication but if it's if it were somebody a professional footballer or somebody for whom fasciotomy would be more disastrous than for everyone else it should be should be mentioned and the these guidelines and the barristers will seize on these because these are guidelines prepared by four professional bodies it states that there should be a plan agreed before the operation and here are the standards that the period of elevation should not exceed of the legs should not exceed four hours and the legs should be lowered for a minimum of 15 minutes after each four hour interval so this is going to keep a lot of cases out of court because it's so absolutely clear that if there's a claim this standard can be referenced and and here's an important point because i have seen a few years ago a case not in nottingham where a patient in an hdu who was complaining of leg cramps after a laparoscopic uh colectomy uh anesthetic essay who was called to see the patient and prescribed some some quinine and but here is a very clear statement that post-operative leg pain should raise the suspicion of well-liked compartment syndrome and here and again as a clinical standard it's a four compartment fasciotomy and it should be underway within one hour of diagnosis so here are very very clear uh standards that have been said so to to sum up uh we've talked a bit about the key common law cases that underpin consent and that in this day and age it's all about imparting material risks reasonable alternative or variant treatments for a reasonable person in the patient's position but also thinking about this particular patient and there's nothing new about it it's all encompassed in the 2008 gmc and the agbi document thank you very much