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Ethical principles underpin the duties of doctors. The main focus of this chapter is information governance and consent – two important topics for anaesthetists. The chapter covers consent in three different situations: children, elderly patients and obstetrics. The starting points are similar in all of the scenarios: establishment of whether the patient has capacity. Chapter 24 also has more information about consent and documentation.
Can a patient see their notes?
You have gone to the ward to perform a preoperative assessment on a patient whom you previously looked after whilst they were on ITU. They recognize you and have some questions regarding their care. They also ask to look in their ITU notes as they wish to clarify something.
What legislation covers the rights of access to health records?
The Data Protection Act (DPA) 1998 applies to living individuals and permits access to both electronic and manual health records, including those held by the NHS, private health companies, GPs, dentists and opticians. Applications can be made by an individual or their authorized representative. The Access to Health Records Act 1990 applies for accessing deceased individuals’ health records.
Would it be legal for you to informally show the patient their ITU notes?
Yes, there is nothing within the law that prevents a healthcare professional from informally showing a patient their own notes, although copies can only be provided following a formal application.
How can a patient make a formal application to see their notes?
Formal requests are made under The Data Protection Act 1998. Individuals are not required to provide a reason for the request, unless it is with a view to commencing legal proceedings (pursuant to the Clinical Negligence Pre-action Protocol). Requests can be made in writing or via email; this is known as the Subject Access Request (SAR). These should be sent directly to the GP/practice manager, or for hospital records to the Health Records Manager at the Trust in question. All requests should be met within 40 days. Fees do apply; these are between £10 and £50 depending on whether copies are requested. There is no charge to view records added within the last 40 days.
An appointment will be made in order for the individual to view their notes. A member of staff should be present to offer support, explain medical terms and ensure the notes are not altered.
If copies have been requested they must be written in language understandable by a layperson, therefore medical terminology/abbreviations must be explained.
When might access be denied?
If it is felt that information held within the notes is likely to cause serious harm to the individual or another party.
If applying on behalf of someone else, when the patient gave information on the understanding that it would remain confidential.
If the records contain details about a third party who has not given their consent for disclosure.
If it is restricted by an order of the courts or if the records are subject to legal professional privilege.
How long are healthcare records held?
Hospital records are normally held for 8 years after completion of treatment; exceptions include maternity, children and mental health records. GP records are held for 10 years following treatment completion, death or leaving the UK; again exceptions apply.
Further reading
Consent and the child: Gillick competence
In which one of the following circumstances has the process of obtaining consent been most appropriate:
a) A 19-year-old patient with autism has his consent provided by his mother.
b) A 14-year-old girl presents with her partner for surgical termination – she provides consent, but insists her parents are not told.
c) A 17-year-old boy with osteosarcoma of his tibia declines potentially life-saving lower limb amputation – despite his parents’ pleas, surgery does not take place.
d) A 15-year-old Jehovah’s Witness girl declines the use of blood products ahead of scoliosis surgery, but her mother requests that she receives blood in the case of life-threatening haemorrhage.
e) A 1-year-old boy presents with his parents for a religious circumcision – although the father provides consent, the mother does not appear happy.
Answer: d)
Parental responsibility encompasses a large range of roles, amongst which is the legal requirement to provide consent for the child, following due consideration of the benefits and risks involved. For the provider obtaining the consent, this process is much easier whilst the child and parents are in accord, but can become a legal minefield when disagreement arises.
Once a child reaches 18, parents no longer have the legal ability to provide consent, whatever that child’s capacity of understanding may be. Should anyone over the age of 18 not be judged to have sufficient capacity to produce consent, then it remains for the doctor to prove this, and potentially have this corroborated with a second opinion.
Following the case of Gillick vs. Norwich and Wisbech AHA (1986) the House of Lords held that a child under 16 could provide consent for treatment if they showed ‘…sufficient maturity and intelligence to understand the nature and implications of the proposed treatment’. Although this case was specifically about contraception, further cases have expanded the argument to other areas of medical practice. However, the declaration also expounded that efforts should be made to persuade the child to tell her parents, or to allow the doctor to tell them.
When there is disagreement between an older child and the parents, particularly when the child could be deemed Gillick competent, the scenario becomes particularly difficult. Although the age of consent is 16, young people under the age of 18 cannot give a binding refusal for treatment. Parental responsibility overrides the child’s wishes in this life-saving scenario. It would be justified to delay surgery in order to explore the patient’s fears; however, if a consensus to treat could not be reached, a legal review should be sought.
Consent from only one parent with parental responsibility is required in law. However, if there is disagreement, particularly in the elective setting, it would be unwise to proceed with surgery. The onus lies with the clinician to obtain a consensus. If this should prove impossible and the treatment is deemed urgent, then the Doctrine of Best Interest may be applied. Obtaining and documenting the independent opinion of a colleague would be prudent.
Further reading
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