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The Biopsychosocial Consent Process: Changing how Clinical Negligence is Decided? - Dr Mark Burgin

30/10/18. Dr. Mark Burgin BM BCh (oxon) MRCGP challenges the belief that informed consent is the gold standard and shows how the BPSM sees consent as a transaction between the doctor and patient.

The traditional view of consent is that a doctor must give ‘enough’ information and then allow the patient to make the decision.

This approach means that issues which would seem central to consent such as what the patient wants and whether they understood what was said are not formally considered.

Legal advice has been to move towards ‘informed consent’ where every possible issue is included in a large volume which neither satisfies doctors or patients.

The GMC makes it clear that the patient must be consented for every prescription and investigation and doctors frequently state that they do not have time to do this.

The biopsychosocial model BPSM breaks down how GPs consent patients into three key elements that are relevant for patients in the real world.


Meeting of Minds

The phrase ‘meeting of minds’ originates in contact law to describe a process that is familiar to GPs where there is a common understanding.

In the BPSM this is achieved by a shared discussion about the decision and can be evidenced by the patient’s own words written into the record.

The uniqueness of a patient’s own words is compelling evidence of the patient’s understanding, their doubts and their acceptance.

Signing a document is not proof that the patient understood and made a decision and in most cases it is highly unlikely that the patient read even a short document.

Adding the patient’s words to the document or the medical records where there is no consent form removes all doubt as to the patient’s state of mind.


Undue influence

Another concept from contract law is that consent can be invalidated by a doctor who puts too much pressure on a patient to agree to the doctor’s point of view.

In Montgomery the doctor was selective as to the choices offered to the patient but even when the options are offered selective information can take away choice.

The more vulnerable the patient is and the more powerful the doctor the greater the risk that the patient will become influenced by the doctor.

Doctors should recognise this risk in the records and take reasonable steps to ensure that the patient is as empowered as possible when making decisions.

The BPSM goes further than simply identifying vulnerable patients and looks at previous consultations for evidence of that the doctor has been empowering the patient.


Representation

In contract law representations become part of the contract and in the consent process any promises made become part of the agreement.

The severity of the misrepresentation can vary as can the degree that the patient has relied upon it and these two factors will guide the likely causation.

A persuasive misrepresentation that was intended to deceive the patient would have greater causative potential than a casual remark following a detailed discussion.

Recording representations is challenging because there is no agreed format and the importance put upon them by the patient may be greater than the doctor.

The length of a consultation is recorded by the electronic record and I recommend one patient quote for every 5 minutes spent discussing a decision.


Conclusions

The Biopsychosocial model BPSM challenges the accepted view of the consent process by offering a structure that reflects how consent works in the real world.

The BPSM argues that it is equally wrong to say something that should not have been said as to fail to say something that should have been said.

It is throwback to an earlier period that medical records continue to be empty of the patient’s voice and General practice should be first to address this omission.

I have already written that recording patient involvement is a key part of ongoing high-quality care and GPs are already having these discussions with their patients. (1)

All that needs to change is that GPs decide that they should write down what their patients are saying so that the patient’s voice is no longer silenced.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

  1. Burgin 2018 Analysing your medical records - MDU Journal mdujournal.themdu.com

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