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As a general principle a patient with decision-making capacity should not receive treatment in the absence of informed consent. Section 7 of the National Health Act is clear in that all things being equal and in the absence of some understandable legal caveats a health service may not be provided to a user without the user’s informed consent.
Section 6 of the National Health Act is instructive regarding the principles of the information that should be imparted to a patient. Unless it would be contrary to the patient’s best interest, the patient should be informed of their health status. The patient must be informed of the diagnostic and treatment options generally available to the user as well as the benefits, risks, costs, and consequences generally associated with each option.
The right to decline, or withdraw consent for, treatment is fundamental not only in the ethics of modern medicine but also in South African law. This right is also clearly set out in Section 6 of the National health Act which states: ‘(d) the user’s right to refuse(sic) health services and explain the implications, risks, obligations of such refusal’. So, if a patient declines a management option you suggest your obligations do not end there – you are obliged to explain the possible consequences of such a decision. The fact this is included in the right concerned with informed consent shows how important it is that a patient should be fully informed if they are declining to consent to treatment.
Patients with decision-making capacity have the right to decline treatment, even if their treating clinician thinks this decision is unwise, dangerous or even foolhardy. If, however, the clinician considers that the patient lacks decision-making capacity this must be clarified. If the patient lacks decision-making capacity, other options for consent or authorisation for treatment, as laid out in Section 6 of the National Health Act, need to be considered.
Doctors can think that when a patient has declined to undergo an operation or a treatment, their obligations finish there, but this is not the case. Every year Medical Protection sees complaints which arise following patients declining treatment. As an example:
The issue in this case is that the patient had initially agreed to the wide excision and only declined to proceed during a discussion in the pre-op area. The patient was having other skin surgeries that day and the other procedures went ahead. Because the discussion occurred in the pre-op area, it was not well documented and there was nothing in the notes recording that the patient had been told about the possible consequences of not going ahead with surgery. The surgeon in this case clearly could not proceed with the recommended surgery, in the face of the patient’s withdrawal of consent – but what could he have done to avoid a later complaint?
It is not uncommon for conversations that occur in a pre-op area to be poorly documented. Often the patient is being seen in between cases in theatre, there may be no facilities to dictate or record a file note and it may not be obvious where such conversations should be recorded. There may also be concerns about the patient’s capacity to make a reasoned decision in this situation, particularly if they have been given a premed. If a patient declines treatment in this situation, it is probably better to arrange to meet with them later and have a full, documented discussion about the possible consequences of declining the treatment. If the patient does not wish to agree to or attend such a follow up meeting then a letter to the patient (and GP) recording the discussion, the matters set out below and the offer of a follow up consultation should be sent.
Doctors are now increasingly aware that when they are ‘consenting’ a patient to have a procedure or treatment, they must carefully record the possible complications which have been explained to the patient. However, when a patient is declining a recommended treatment, it is probably even more important that the conversation is carefully documented, and the documents are retained. Medical Protection would recommend the following:
There should be clear written documentation that the patient has been offered a treatment but has declined it.
There should be documentation that the possible consequences of declining the treatment have been explained to the patient, including the worst possible outcome.
Alternative treatments should be discussed, and the pros and cons of these treatments should be discussed and documented.
A follow-up appointment should be arranged to give the patient a chance to reconsider and to again discuss other treatment options.
If possible, it is helpful if a relative or support person accompanies the patient to the follow-up appointment, both to support the patient, but also so the family is aware of the choices the patient has been offered.
There is no legal requirement for the patient to sign a document saying they have declined treatment. In fact, good contemporaneous notes, where it is clear the patient has been warned of the possible outcome of declining treatment, are probably better than a signed document where this detail has not been clearly laid out.
It should be made clear to the patient, that if they were to change their mind in the future and wish to undertake the treatment, whether that may be possible and if so, what pathway the patient would follow to achieve this.
Giving the patient written information about the proposed treatment is always helpful and exactly what has been provided should be documented in the notes.
If there are any concerns that the patient may not have the decision-making capacity to consent or decline treatment, a formal competence assessment is advisable.
This is general advice, but Medical Protection members are welcome to contact us to talk to one of our advisers.
According to the National Health Act, what is required before a patient with decision-making capacity can receive treatment?
Signed legal document
The presence of a family member
Informed consent
A formal competence assessment
What should a healthcare provider do if a patient declines treatment?
Proceed with the treatment regardless
Cease communication with the patient
Document the refusal and explain the possible consequences
Seek legal action against the patient
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