The 1990s witnessed the demise of clinical autonomy and paternalism, and in their place came informed consent theory and evidence-based practice incorporating protocols, guidelines and audit.
Both have been heralded as significant boosts to improved standards of healthcare. But the two may also conflict where an informed patient decides, perhaps in the doctor's view irrationally, to reject a course of treatment recommended by guidelines in favour of something untried, untested or even clearly detrimental to the patient's health.
What should the doctor do if a patient refuses treatment?
Adult competent patients are entitled to accept or reject treatment options. Their reasons do not have to be sound or rational; indeed, they do not have to give any reasons at all.
Where a competent adult refuses treatment recommended by guidelines, the doctor is bound to respect that refusal. If he does not, the doctor may face disciplinary action by the General Medical Council, plus possible civil and criminal proceedings in battery.
Informed refusal, just like informed consent, comprises three elements:
- The patient must be competent.
- He or she must have sufficient information to be able to make a choice.
- The decision must be made voluntarily.
It may be tempting to assume that any patient who fails to follow good advice is not competent, but that is not the test. Deciding whether or not someone is competent can also be broken down into three stages:1
- Does the patient understand the treatment information, i.e. the implications of accepting or rejecting the various treatment options?
- Does the patient believe it?
- Can he or she weigh it in the balance to arrive at a choice?
If the answer to all three questions is yes, the patient is competent to give or withhold consent.
How much information should the doctor give?
Assuming the patient to be competent, how much information should be given to a patient about prospective treatments?
The GMC booklet Seeking Patients' Consent: The Ethical Considerations2 gives specific advice on information that should be given to patients (see extract in Figure 1, below).
|Extract from the GMC's guidance on good medical practice2|
As can be seen from the extract, there is now a considerable duty on doctors to explain the available treatments and the patients' rights in some detail.
What is the doctor's duty in these circumstances?
The duty on the doctor is to ensure that patients understand the implications of their proposed course of action.
Information must be provided in objective terms, if necessary recruiting colleagues with special expertise to provide further advice, but scaremongering is out of the question.
Equally, doctors cannot wash their hands of patients simply because they will not toe the line. The duty of care remains despite the refusal. In Good Medical Practice,3 the GMC states:
'If you feel that your beliefs might affect the treatment you provide, you must explain this to patients, and tell them of their right to see another doctor.'
'You must not refuse or delay treatment because you feel that patients' actions have contributed to their condition, or because you may be putting yourself at risk.'
Discharging the duty of care following refusal requires the doctor to provide treatment, promoting the patient's best interest but within the limits of the patient's consent.
Consent or refusal must be given voluntarily. Any degree of coercion, fear, force or fraud will cast doubt upon the validity of the patient's decision.
This point was illustrated in the judgment following the case of Miss T,4 a 20 year old who was admitted to hospital at 34 weeks' gestation with pneumonia.3 She was not herself a Jehovah's Witness but had been brought up as one by her mother.
The day following admission, Miss T announced that she did not want a blood transfusion, although at that time no transfusion had been contemplated. However, later in the day, she went into labour and the baby was delivered by caesarean section.
Because of various complications, a blood transfusion was considered necessary, and was administered while Miss T was in a sedated and critical condition.
The court subsequently held that her earlier refusal of a blood transfusion was not valid because when she had made that decision, she had not anticipated the specific complication that she then faced.
In the Court of Appeal the issue was analysed further, where it was held that a refusal may be inoperative where there was such a degree of external influence as to persuade the patient to depart from her own wishes to an extent that the law regards as undue influence.
Advance refusal of treatment
Patients may also make advance refusals of treatment – more commonly known as living wills or advance directives. These are statements made by patients when competent about how they wish to be treated should they become incompetent at a later stage.
The statement will have legal force provided that the patient made it when competent on the basis of sufficient information and made the choice freely. Only if there is reason to believe that the patient has changed his or her mind since making the advance directive, or the advance directive is not sufficiently specific to be applicable to the treatment in question, is it legitimate to disregard it.
In general, failure to abide by a valid advance directive leaves the doctor vulnerable to civil or criminal proceedings in battery and disciplinary proceedings before the GMC, which has stated in its guidance2:
'You must respect any refusal of treatment given when the patient was competent.'
Treatments that the doctor considers unwise
Patients can reject treatments that doctors consider prudent, but can they insist on treatments the doctor considers unwise?
Provided that withholding the treatment is not in itself negligent, doctors are not compelled to provide everything a patient may demand.
Lord Donaldson, when Master of the Rolls, likened a patient's consent to turning the key in a door to unlock it. It is then up to the doctor to decide if the door should be opened by providing treatment, that decision being dependent upon assessing whether doing so would be in the best interests of the patient.
When it comes to conflict between guidelines and consent, consent is king – provided that the patient really is in a position to make an informed choice.
- Re C  2 All ER 782.
- Seeking Patients' Consent: The Ethical Considerations. London: General Medical Council, November 1998.
- Good Medical Practice. 2nd edn. London: General Medical Council, July 1998.
- Re T  4 All ER 649.