“The more information that a set of notes contains, the less room there is for uncertainty,” he said.
“Notes made in haste are often found to be illegible to all but the author, and even he or she may not be able to properly decipher them with certainty, several years after they are made,” he added.
Notes should be pertinent, short and legible, the webinar heard.
Where mistakes were made, professionals should face up to them quickly, and in an honest manner, the judge advised.
Conversations with patients were central to the consent processes, rather than the signed form itself, he said – particularly for those patients disadvantaged in education, or those for whom English was not their first language.
While the consent process might be time-consuming, it could not be done in a formulaic way, the judge warned.
The fact that a clinician was working under excessive pressure could not be laid at the door of the patient, he added.
Factual basis
“It is the prior discussion that provides the factual basis for any later decision that must be made to determine whether or not the patient has given a fully informed consent,” the former Court of Appeal judge said.
However, informed consent did not have to be given in writing, he added, but on a precautionary basis should be signed, since this removed some element of doubt.
The doctor-patient relationship led to a fundamental obligation, or the duty of care, he stressed, which included sub-duties such as confidentiality, imparting advice clearly, and keeping accurate records.
The law only permitted surgery to go ahead without consent on an emergency basis, Mr Justice Peart said.
But only limited warning may be necessary for life-saving treatment, he added.
The obligations with elective surgery, such as vasectomy, may be more stringent and onerous.
Consent is not valid if the patient has not been given enough information to make an informed decision.
Material risks
The ’reasonable patient’ test is that a patient has the right to be told about all material risks associated with proposed treatment, but that person will not have impossible expectations or impose impossible standards.
Mr Justice Peart said that the relationship between patient and clinician was founded on three essential components: confidentiality, consent, and competent care, with confidentiality as the defining feature.
Without confidentiality, the doctor-patient, or solicitor-client, relationship was fatally undermined, and both professions could be brought into disrepute, he added.
However, a doctor or lawyer cannot give full and proper advice if they do not have all the facts, so the professional must make reasonable efforts to seek out all the relevant information.
A duty to keep follow-up appointments also lies with the patient, as well as that of giving information on known allergies.
If patients failed to fulfil their own duties and obligations, they could undermine their chances of complete success in damages claims against a clinician, Mr Justice Peart stated.
The idea of a patient-doctor ‘partnership’ is a good one, he said, because it embedded the increasing recognition of the principle of patient autonomy, and the responsibility this created.
However, unlike a business partnership, this was still not a partnership of equals, he pointed out, in that the clinician was dominant, and had more onerous responsibilities.