Consent and the Law!
I recently attended a great webinar on consent for chiropractors and this is something that has got me in sticky waters with the GCC in the past, so I thought it fair to help you with both my learnings from the webinar and personal experience to help you secure your practice procedures.
Firstly it is worth noting that the issue of consent is not just a professional one, but also a legal one with the worst case being an arrest and prosecution, and I say this from the outset so that I hope you take it seriously and read on, for a subject that I know is not the most riveting.
So what happened to me? Long story short, it is with no shame and no hiding that I have had GCC professional conduct cases, and I know some of you have too. However, as a profession we shy away from talking about them and learning from all our mistakes. They call it ‘practice’ after all, and I am no different in my learning.
I had a case against me for professional misconduct that was initiated by a claim that I had hurt a patient. As these things go, once the GCC sees it, they investigate further. From that investigation, one of the allegations was not obtaining proper consent in two places:
1. The patient signed to start treatment before the New Patient.
2. They did not sign anything at the ROF, nor where the risks that were explained documented.
Issues here are, for the signing of care there needs to be an ‘informed decision’ from the patient. If this is done before the ROF then there has been no information given and therefore it is not an ‘informed’ decision. And according to my lawyers, I am not alone, this is a very common mistake.
Secondly, no documentation of risks, as lawyers say, “if it isn’t written down, it didn’t happen”. So although I did explain risks, I did not write them and therefore I could argue my case as much as I want, but in the court, it didn’t happen.
From the course attended recently they showed us clearly that there are four points to a consent process and that is what I want to share with you today, to help you boost your procedures in practice.
1. Agreement to Exam and Treatment.
Agreement can be in three forms; i) Written, ii) Verbal, iii) Implied. These are three ways to record. And all of these must be written in your notes. So even if someone does not sign a document, if they say yes to care (verbal) and/or lie on your bench (implied), then you must make a note in your recordings for that visit.
2. With full understanding.
A patient needs to fully understand what they are consenting for and what that means to them. It is not enough to say “I can help you would you like to start care”. You must go through your results, explain what it means to them and how you will help.
3. Plus full understanding of Benefits, Risks, and Alternatives.
When going through the results, with them you need to make them aware of all the potential risks, no matter how small and how they pertain to them, as well as the benefits. I think you know that. But very often missed is also the option for an alternative. Patients need to be given another option besides your care.
4. Capacity to give consent.
This is a key area, the patient +/- guardian, needs to have the capacity to understand what you are saying and willingly consent to their care.
So these are the main points to be aware of in the consent process. And what I thought I would also share is a couple of things I was unaware of that you may have missed too.
· You need to get consent at every visit. I thought it was just the New Patient and first adjustment. But you need to record consent each visit, even if that is just documenting implied consent.
· The offer of a chaperone is mandatory and should be expressly signed for or against.
· Consent to examination discussed before signing. Our patients would sign for that when filling out their intake form, but we as the chiropractor should be discussing that with them to ‘inform’ them of what to expect.
I hope this all helps you, dry I know. But you all do such great work to help others, don’t let this be the thing that catches you out.
With love,
Tom