The importance of making sure that you've followed a detailed and robust consenting process before carrying out an aesthetic procedure cannot be overemphasised.
Here, we'll explore some of the key considerations you need to be aware of when it comes to consenting and consultations. For more guidance on best practice for consenting and consultations in aesthetics, you can also watch our video, which is packed with useful tips from Hamilton Fraser experts.
Principles of consent
Patients have a right to give or withhold consent for any procedure or treatment. Carrying out a treatment or performing a procedure without a patient’s proper consent can actually constitute assault and potentially put you at risk of incurring criminal penalties.
But obtaining consent alone is not sufficient – it’s important to provide your patient with appropriate information about the risks and benefits of a procedure or treatment before they consent to it. Failure to do this could be portrayed as negligence and put you at risk of being sued by your patient. Medical practitioners must therefore make sure that they obtain ‘informed consent’ from their patients. While you may not want to ‘frighten a patient off’ by drawing their attention to the potential risks of going ahead with a procedure, the impact on your practice of being successfully sued is likely to be more detrimental in the long run than losing a patient in this way.
The process of obtaining informed consent is based firstly on the assumption that the patient has capacity to provide consent. Next, it requires the aesthetic practitioner to discuss with the patient the purpose, risks and benefits of the proposed treatment and to communicate and document this process in detail. The practitioner doesn’t have to approve of the patient’s choice – a patient is free to make an ill-advised choice – although the practitioner may decide it is safer to say ‘no’ if they feel the patient is not suited to the treatment, and you can read more about patient selection in our separate guide. The critical factor when it comes to consenting is that the patient’s consent must be informed by having all the risks and benefits of their chosen option explained clearly to them. This raises the crucial question – what risks should you warn a patient of?
Principles guiding communication of risk
The courts do not provide clear guidance about a minimum level of risk that should be communicated to a patient. While the following is not an exhaustive list, it highlights the broad principles guiding communication of risk to patients, based on previous cases:
A patient should be advised of any material risk inherent in the treatment proposed – a risk is ‘material’ if it is likely that a patient would ‘attach significance to it’
The more serious the possible risk, the more likely it is that you should warn a patient about it
If there is a one to two per cent risk of a significant adverse event then the patient should be made aware of that risk, even if they have not asked about it
If the patient specifically asks about the risks associated with a procedure or treatment, you should warn them about all potential complications and risks, however rare they may be
If alternative (lower risk) treatments exist to achieve a particular result, you should discuss them with the patient
The guidance on communicating risk to patients is vague, but if you don't follow the correct procedure for obtaining informed consent from a patient and the treatment is not successful (even if it is not your fault), you could be sued. It's also important to note that consent may be effectively withdrawn during the course of a procedure. For example, if a patient asks you to stop during a procedure due to pain or discomfort, continuing would then constitute assault or negligence. To reduce the risk of a claim being made against you resulting from a treatment you have carried out, there are two key principles that you must follow:
1) Make sure that you always take informed consent 2) Make sure that you can always produce evidence that it has been taken
Tips for taking consent
Here are a few other tips to help you when taking consent:
Consider using a two-stage consenting process – this is particularly beneficial if the procedure is likely to result in a significant change to the patient’s appearance. Where you see the patient twice you could provide them with details of the risks and benefits at the first appointment and confirm and evidence the consent at the second appointment
If you adopt a two-stage process, make sure that the patient has enough ‘cool off’ time between appointments to have considered their options carefully
Tailor aesthetic consultation forms to the range of treatments that you offer to make sure that the relevant side effects are listed, and have a separate consent form for each treatment
During the consenting process use clear language – your patient is unlikely to be familiar with medical terminology. This helps to manage your patient’s expectations as well as reducing the likelihood of any misunderstanding
It may help to use diagrams to explain risks and benefits
Ask the patient whether they have any specific concerns or questions they would like to discuss
Try to make sure that the patient understands what the treatment is realistically likely to achieve and whether they will need further treatment to reach their desired outcome
In cases where there are a number of risks to the patient, consider breaking the aesthetic consultation consent form into clearly headed sections with a signature box after each section. This helps to draw the patient’s attention to each specific risk. While a more detailed form will take additional time to complete, it could save time and help safeguard your reputation in the future
Avoid consent which is directed to a particular choice as courts don’t like this approach
Bear in mind that risk is relative from one person to the next – a risk that is insignificant to one person may matter greatly to another. For example, a minimal risk of impaired vision following treatment may be far more important to a fighter pilot than to an office worker; remember you are consenting the patient in front of you, not the general population
Document the patient’s expectations and motivations for having the treatment. If you feel that you are unable to achieve their desired outcome then discuss with them what it is you can do and make sure it is all written down
Check that a patient can comply with any necessary aftercare – for example, if they must keep out of the sun for two weeks after the treatment check they don’t have a beach holiday booked for the following week
Always ask about a patient’s psychiatric as well as physical medical history – assess very carefully whether you know enough about their psychiatric history before agreeing to treat them. If you sense that there are gaps, consider asking their GP for more information. Beware of the patient who minimises a psychiatric history
At the conclusion of the consenting process ask yourself whether you are satisfied that the patient has listened and understood the information you have provided. If necessary, confirm they have taken it all in by asking them what they understand the risks to be. This allows you the opportunity to go through any information they have missed
Tips for documenting the consenting process
If a complaint or formal claim is made against you, the aesthetic consent form along with any other paperwork and digital records that you complete with your patient during the consenting process will be used as evidence in your defence. This documentation should therefore be as thorough as possible and you need to be able to locate it easily, if required.
A patient has three years and four months to make a formal claim against you. This can be in the form of a solicitor’s letter or direct request for compensation. If you have only seen the patient once and don’t receive notification of a claim until three years later, then you will need to rely on your documentation to remind yourself of the patient and their treatment journey.
There is no single ‘best way’ of documenting the consenting process, but the more comprehensive your records, the better position you will be in to defend a claim against you. Becoming a ‘paperless practitioner’ can help you not only be more organised, but compliant too.
It is a well-known fact that patients don’t retain all the information they’re given verbally, so provide your patient with the relevant documentation to take away with them if you’ve had a face to face consultation, or follow up electronically. In addition, you should record the fact that you have provided this information, as well as discussing the risks and benefits with them in person or via a virtual consultation. At the treatment stage, ask and record whether or not they have any questions about the information you provided
Ideally, carry out a two-stage consent process where you provide your patient with documentation at the first appointment so that they can review it and ask questions about it at the second appointment, before giving consent on the aesthetic consent form
It's also a good idea to provide documentation to the patient specifically explaining any aftercare needed and the risks of noncompliance or contra-indicated medication. Always make sure that you record that this information has been provided and get your patient to initial the consent form or tick a box to acknowledge receipt
If you have used diagrams or drawings to illustrate a treatment or procedure, keep them with the notes
Take ‘before’ and ‘after’ photographs of the patient; in surgery cases these photographs can include the patient in a ‘marked up’ state, evidencing the patient’s compliance in identifying where the surgery will take place. Patients can easily provide their own photographs in the event of a claim and having your originals will be evidence in the event that a patient were to alter their own photographs, which is easily done with digital technology
Make sure any specific or unusual issues raised by your patient are documented, together with the advice given
Don’t assume that a patient having a ‘repeat’ treatment does not need to be consented again. Much will depend on the gap between treatments – for example, there is a world of difference between a patient undergoing a course of treatments each week over five weeks and a patient re-attending for a second single treatment after a gap of six months
Most importantly, make sure that the aesthetic consent form is signed (this could be electronically) and dated. If you have follow up appointments, make sure that any documentation or consent forms are also signed and dated each time you see the patient, whether virtually or face to face
As the practitioner, it is your responsibility to seek informed consent before carrying out a procedure on a patient. Failure to warn a patient about any potential adverse outcomes before obtaining their consent puts you at risk of a claim being made against you. Making sure that you have a robust consenting and consultation procedure in place, supported by evidence – detailed, signed and dated documentation – is key to minimising this risk and will provide your defence if ever needed in the future.