You don’t immediately recognise the patient’s name in the lawyer’s letter requesting your notes. When you look at the record it still doesn’t ring any bells. There is a signed consent form. The cataract surgery was routine, the patient recovered well and was seeing clearly at the post-surgery follow up. He hadn’t reported any complications after that. Then you see the details of the complaint. He says he was not told he would still need glasses and is complaining the surgery was poorly performed.
According to Avant’s data, in FY2018, the rate of both complaints to regulators and compensation claims against ophthalmologists was the highest Avant has seen in the last six years.
The five most common grounds for complaint that we saw were (in order):
- Procedural / surgical performance
- Management or treatment
- Practitioner behaviours – including communication and billing practices
- Consent – including poor communication and inadequate provision of information
When we look in more detail at the complaints however, it’s not uncommon to see a scenario similar to the one above. From the doctor’s perspective, the surgery went well, the risks were explained fully, everything went as expected and the outcome is well within the expected range. The patient should be happy, so why are you getting a complaint?
It can be tempting to think that you will have met the requirements for obtaining consent if you take the patient through a checklist of risks and get their signature on the consent form. However, in our experience, problems involving consent are less about whether the consent process occurs and more about the quality of the consent discussion.
In our scenario, continuing to need glasses after cataract surgery is not a risk as such and may seem insignificant. However it does illustrate the mismatch of expectations that often underlies claims or complaints against doctors. If a patient has not understood the limitations of treatment, or the potential outcomes to expect, it is not uncommon for them to believe the problem is with the doctor and the surgery, and make a complaint.
Having a signed consent form is important as evidence of your discussion with a patient. But it is much more important to think about the conversation – consent is a process, not a form.
Consent should be about engaging the patient in a discussion about their situation, needs, priorities and expectations and coming to a shared decision about the management of their condition and treatment options.
The well-known ophthalmology case of Rogers v Whitaker established that the discussion should be patient-centred. This means that you need to understand the patient’s situation and their perspective. You need to take a social history and understand who the patient is. As well as discussing risks that are likely to be significant to the patient, the patient needs to be clear about what to expect in terms of outcome and recovery. A patient who is a professional athlete, or long-distance truck driver, or pilot might have a different perspective on what is an acceptable outcome, which is why it is essential you ask what is important to them.
Checking for understanding
The result of your discussion should be that the patient has understood the procedure, the range of expected outcomes and potential risks, and has agreed to proceed on that basis.
Making sure that you have provided patients with enough information to make a decision does cause concern for doctors. It may be helpful for you and your patient to consider these questions:
- What is the patient’s current situation?
- What result are they looking for from the proposed treatment?
- What outcome is important to the patient and what are they willing to compromise on?
- What are the patient’s specific concerns about their condition and the recommended treatment?
- Can they explain in their own words the proposed treatment and alternatives, including conservative management?
- Do they understand the risks of the treatment including the possibility their condition may not improve or potentially worsen as a result of surgery?
- How would they manage a common outcome after treatment, especially if it means an extended recovery period, need for revision surgery, or other consequences?
The consent process is about effective conversations. Understanding an individual patient’s needs, concerns and priorities, will better facilitate shared decisions about their treatment. Having had that conversation, you can be much more confident that the patient has understood what the treatment involves and what outcomes to expect. And you are more likely to avoid a complaint.
This article was originally published in The Royal Australian and New Zealand College of Ophthalmologists' Eye2Eye Quarter 1 2019, Volume 22, Issue 1.