The top four medicolegal risks to be aware of in your practice

Consent

Consent is a process, rather than a form-filling exercise, and it is important that practitioners are not pressured to do anything beyond their competence, experience and knowledge. This includes obtaining consent from a patient, particularly for a procedure or treatment they are not familiar with.

Practitioners should always record what a patient has been told in the patient’s notes in order to avoid medicolegal problems such as complaints, clinical negligence claims and disciplinary proceedings from failing to take consent properly. Consent is patient- specific and can depend on individual circumstances such as lifestyle, age, or occupation. Any competent adult can refuse treatment, and all adult patients are presumed competent unless proved otherwise.

Where an adult patient is deemed to lack capacity to make decisions, reasonable steps should be taken to find out whether any other person has legal authority to make decisions on their behalf. If so, it is that person from whom the team should seek consent for the proposed treatment. In accordance with section 7 of the National Health Act, if the patient is unable to give informed consent and no person is mandated or authorised to give such consent, the consent should be given by the spouse or partner of the patient or, in the absence of such spouse or partner, a parent, grandparent, an adult child or a brother or a sister of the user, in the specific order as listed.(1)

Where a delay in the provision of the health service might result in such a patient's death or irreversible damage to his or her health and the patient has not expressly, impliedly or by his/her conduct, refused that health service, the service may be provided to such patient without his/her consent. Bear in mind that a patient who might lack the capacity to make one particular decision, may be able to make other decisions in the future.

Consent when dealing with children can be more problematic, but valid consent is just as important when treating children and young people as it is with adults. The age at which a person is able to consent to treatment in South Africa is 12, provided they have sufficient maturity and decisional capacity “to understand the benefits, risks, social and other implications of the treatment”.(2)

For children who lack decisional capacity and/or are under 12 years of age, consent for treatment is obtained from the parent, guardian, or caregiver (a caregiver can also be a child head of a household).(2)

Confidentiality

Confidentiality is key to maintaining trust between patients and practitioner and you have a legal and ethical duty to keep all sensitive patient information confidential. Bear in mind that confidential information is not just what might be discussed in a consultation, or written in patient records; it also includes basic information about the patient, such as name and address.

Under certain circumstances, the disclosure of patient information is required by law. In these situations, consent from the patient is not required but you should not disclose any more information than is absolutely necessary.

The patient should be made aware of the disclosure, and informed about why you are disclosing the information. There are certain situations where it would not be practicable to do so; for example, if the patient lacks capacity, obtaining consent undermines the purposes for which the disclosure was being made, or if the disclosure must be made quickly, such as in cases of detection or control of communicable diseases. It is important to fully document any decisions about the disclosure of information you make.

A specific statutory requirement may demand that you disclose information about a patient, such as providing details of a notifiable disease or reporting child or elder abuse. You must also disclose patient information if ordered to do so by a judge or presiding officer of a court. However, there is the opportunity to object if you consider there to be a compulsion to disclose information that is irrelevant – for example, details relating to relatives or partners of the patient, who are not involved in any proceedings or if you believe that the information should not be disclosed for another reason, for instance, due to the sensitive nature thereof.

A statutory regulatory body in any of the healthcare professions may also submit an official request for you to disclose patient information, in such cases where the body deems it necessary in the interests of justice or to ensure the safety of other patients. Where practical, this disclosure should be discussed with the patient – but in exceptional cases, a disclosure may be necessary even if the patient objects.

It is also important to note that you should not disclose patient information to a third party such as a lawyer, police officer or officer of a court without the patient’s express consent.   However, it may be justifiable, if the public interest in disclosing the information outweighs the patient’s interests in keeping it confidential.  This also excludes circumstances that may involve details of a notifiable disease, child, or elder abuse. In all cases, you must decide whether or not the possible harm caused to the patient – and to your relationship with the patient – by disclosing this information will outweigh the benefits resulting from the disclosure.

Before disclosing any information, you should also satisfy yourself that the information cannot be anonymised and that you are only disclosing information relevant to the purpose of the disclosure. It is important to document any decision you make and your reasons for disclosing the information.

The disclosure of a patient’s personal information may be in the public interest, if it is likely to assist in the prevention of a serious and imminent threat to public health or national security, or reduce the risk of death or serious harm to the patient or a third party. This includes the prevention, detection and prosecution of a serious crime. The risk of harm must, in your opinion, outweigh the privacy interests of your patient.

If the patient has refused consent to the disclosure, you should consider any reasons provided by the patient. If you still consider that disclosure is necessary to protect a third party from death or serious harm, you should inform the patient and then disclose information promptly to the appropriate person or authority.

Record Keeping

It is essential to maintain good patient records – whether electronic or handwritten – to ensure the continuity of your patients’ care.   You should be consistent in writing comprehensive, contemporaneous notes, as they are a reflection of the quality of care. The notes will also form the basis of the hospital’s defence should there be any future litigation against your hospital.

Whether handwritten or stored on a computer you should always ensure that your notes are signed and dated. If you later realise that your notes are factually incorrect you must not make any changes to the text. Instead, include amendments that are clearly labelled as a correction alongside the time they were made and your name. Good record keeping and note taking should be a staple part of your practice. Your notes should be comprehensive, documenting any decision agreed with the patient and related discussions. Notes should also contain a wide range of material, including information transfers, relevant patient history, clinical findings, patient progress, investigations, results, consent and referrals.

Patient records can be comprised of a combination of materials. For instance, they can be handwritten, computerised and include correspondence between health professionals. Patient records can also include lab reports and imaging records such as photographs, video and other recordings from monitoring equipment. You should be careful with your wording and ensure you do not include offensive or gratuitous comments about the patient.

Care should also be taken to only detail information that is relevant to the patient’s health record. It is worth remembering that patients have a right to access their own patient records under the Promotion of Access to Information Act 2000.(3)