We’re going ahead: treatment conundrums

18 July 2019 | Anna Gornall LLB (Hons), Solicitor, Avant Law, QLD

It is a natural tendency for doctors to want to provide the best treatment for their patients. Going ahead with what you think is best may require some further consideration to avoid a subsequent complaint. Making a decision to extend treatment can raise significant medico-legal and professional issues.

Informed consent challenged

Keeping notes of conversations with patients may not be enough should things go wrong in a dispute about consent. Without all appropriate supporting documentation, your records may not be sufficient when defending a claim, as this case highlights.

Treatment extended

Mr Carr* saw the practitioner due to his facial hyperpigmentation, and had a number of discussions over many months about the various treatments for the condition. They specifically discussed the intense pulse light treatment which was the recommended treatment. Mr Carr confirmed he was happy to proceed, which was noted in the records made on the day of the procedure. The practitioner treated the patient’s target areas mostly on the cheeks but in addition treated one small area on his nose.

Mr Carr admitted he had a good result on the cheeks but had a blister on the nose that was not notified to the practitioner until after many months in spite of receiving advice on post-procedure care. Mr Carr decided to make a complaint about the practitioner to the Office of the Health Ombudsman.

In his complaint, Mr Carr stated that the practitioner had expanded the area of the treatment without his express consent and that the procedure was not adequately explained. The incident was referred to the Australian Health Practitioner Regulation Agency (AHPRA) for investigation into the treatment provided by our member.

The missing consent form

We briefed our member on what to expect during the AHPRA investigation, reviewed the medical notes and prepared a response to the complaint.

The records clearly documented the conversations that had taken place, including a note explicitly stating ‘consent signed’. However, the actual consent form could not be located.

AHPRA determined despite generally having good records, it was regarded as a failure to be unable to locate the signed consent form. The regulator contended that, because the patient stated that he was not aware the area of the treatment would expand, the absence of a consent form implied that complete formal consent was not obtained.

Further, in expanding the area of the treatment, AHPRA noted the practitioner should have documented the details of the discussion and patient consent, explaining why the procedure was not performed as initially requested, and that Mr Carr had agreed to the change. These records should have been retained and stored securely. Upon consideration, the regulator decided to caution the doctor, which he accepted.

Although the medical records showed the practitioner had a clear consent process, the single issue of the lack of a signed consent form on the patient’s records resulted in a caution.


Dr Adrian Guest, MBBS (London), FRCOG, FRANZCOG, Claims Manager & Medical Advisor, QLD

The onus is on the practitioner to ensure the patient is fully informed and understands the proposed treatment and treatment plan. Despite this, there is no guarantee a patient will not make a complaint. However, practitioners should keep in mind the simple steps to reduce that risk:

  • Take the time to talk to patients.
  • Take the time to explain benefits and risks of treatment plans/procedures etc.
  • Ensure the patient understands the information given to them and, if not, encourage them to ask questions.
  • Cease doctor-patient relationship if the therapeutic relationship has broken down.
  • Have good medical records and additional documentation.

If a complaint is made, good and accurate medical records are always your best defence.

*All names in the case study have been changed. The original article was published in Connect issue 9.

Useful resources

Download our factsheet: Consent essentials or complete our eLearning course: On the record: medical records and documentation.

You can also listen to our podcast in which Georgie Haysom, Head of Research Education and Advocacy, Avant, chats with Dr Ian Incoll, The Dean of Education at the Australian Orthopaedic Association, about current issues with patient consent.

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