It is essential that aesthetic nurse practitioners have a detailed and robust consenting process to ensure patients are able to make informed decisions, and to protect themselves against complaints or claims.
Issues surrounding informed consent are perhaps more important in cosmetic cases than in any other specialty. These cases are unique in that the majority of procedures seek to enhance the claimant's appearance rather than to treat a disease and are therefore, in the medical sense, not absolutely necessary.
Principles of consent
You may be familiar with the court decision of Montgomery v Lanarkshire Health Board (2015) UKSC 11. This was a case in which damages were awarded as a result of a failure to adequately explain the relatively low risk of shoulder dystocia to a diabetic mother whose son developed cerebral palsy as a result of lack of oxygen during delivery. Although the risk of this complication was minimal, the court accepted the mother's evidence that she would have attached significant weight to it and would have opted for a caesarean section. The court ruled that a medical practitioner is under a duty to warn a patient of all material risks inherent in any procedure.
The question for all practitioners now is: what is a material risk? There remains relatively little practical guidance. What we do know is that this ruling means that the practitioner is no longer the sole arbiter of determining which risks are material. The practitioner is now required to carry out a consent process that is tailored to each individual patient to include consent in respect of risks that the patient considers to be material. The test of materiality is whether a reasonable person in the patient's position would likely attach significance to that risk. This is a highly individualised process that requires the practitioner's time and careful consideration. The most helpful advice is this: consent the patient in front of you.
The purpose of obtaining consent is to make sure that the patient has a complete understanding of the nature of the treatment and the risks and benefits associated with it. Only then can they make an informed decision.
If a risk occurs relatively frequently, or would constitute a serious complication, then it is clear that it should be discussed with every patient. The more complex task is to identify other risks that should be discussed with the patient, which requires the practitioner to consider whether you think it is a material risk and whether the patient in front of you would consider it to be a material risk. Does the patient have a particular concern about a potential risk associated with the treatment? Would an adverse outcome be particularly significant to the patient in front of you based on, for example, their occupation, or a pre-existing medical condition?
You should also discuss with your patient any reasonable alternative treatments, particularly if this might avoid the risks that are material from your patient's perspective.
Obtaining valid consent
It is important to think about obtaining valid consent. The patient must, of course, have capacity to consent. You should discuss the expected outcome of any procedure, the technique you will use, the limitations, potential risks, benefits and any alternative treatment options. You should then make efforts to check the patient's understanding of what you have explained. A straightforward way to do this is to ask the patient to tell you about their understanding of what you have just discussed.
It will be important for you to use language that is transparent and clear to the layperson. You may wish to clarify points by drawing diagrams, which should then form part of the patient's notes.
Obtaining valid consent is a continuous process from initial consultation to post-treatment follow-up. It will be important for you to have an initial consent discussion with the patient at a consultation and then, ideally, to have a ‘cooling off’ period between that consultation and the treatment appointment. It is a good idea to ensure that the patient has sufficient time to consider the information you provide and to prepare any questions for you. Prior to commencing treatment, you should review the patient's understanding of the procedure and the associated risks and benefits.
You should have in mind that a patient can withdraw consent at any point during treatment. Some practitioners may have experience of a patient asking them to stop during a procedure due to pain or discomfort. It will then be for the practitioner to try to make the patient more comfortable and to obtain consent to continue, or to reschedule, or discontinue treatment altogether.
In circumstances where a patient comes to you for a repeat treatment, for example, dermal filler, it will nonetheless be important for you to review with the patient their up-to-date medical history and remind them of the risks and benefits associated with the treatment. You should also document the rationale for commencing treatment on the same day as the consent discussion.
Recording consent
You should think of consent as a two-stage process: a discussion about the procedure with its associated risks and benefits, and a record of that discussion.
A complaint or claim may be raised up to 3 years after treatment. You may have no recollection of the consultation, so it is very helpful if you have detailed records in respect of the consent process.
Consent records might include standard information leaflets provided to patients regarding certain treatment. These can be beneficial to patients in acting as a reminder of the risks and benefits associated with that treatment. Consent records might also include a consent form signed by the patient. But your records should also include your own note of the specific consent discussion you had with the patient.
Is the treatment right for the particular patient?
Refusing to treat or referring some patients for a second opinion or psychological care may be the best decision in some cases. This can be difficult commercially. However, we come across claims time and time again where it is clear there are psychological issues in the patient's medical records or issues with body dysmorphia and it soon becomes clear the patient was never an appropriate candidate for the treatment they have undergone. The patient may also have unrealistic expectations, which should be a red flag. With the advent of the digital era and widespread information (and misinformation) available on the internet, patients often arrive at the consultation with preconceived ideas, expectations and information that may not be accurate. It is important to be able to identify this and to advise your patient accordingly. It is also important to have a robust discussion with your patient, tailoring it to them and their treatment, rather than a standardised discussion or tick-box exercise.
Consequences of failing to obtain valid consent
A failure to obtain valid consent is one of the most common reasons for litigation and complaints. In our experience, patients very rarely file a legal complaint regarding complications, provided the practitioner has explicitly explained possible complications and risks prior to the treatment.
In an increasing number of these cases, judgement is made in favour of the claimant because the practitioner cannot prove that informed consent was given. Often there is no record—or an inadequate record—of the consultations, or a failure to mention material risks and possible adverse outcomes for fear of putting off the patient.
Litigation is costly, lengthy, stressful and can lead to significant reputational damage. By following the general principles of obtaining valid consent and understanding how vitally important this is, many practitioners will be able to avoid claims and complaints, even where the result may not be what the patient hoped for.