Dr Claudia Petillon discusses the importance of consent following the famous Montgomery case and how to use it to implement best practice within your business
The consent process is a vital part of the patient pathway and is far more than just getting the patient to sign on the dotted line. As we may have seen in recent press, the aesthetic practitioner is continually under scrutiny and often we are the subject of much criticism and horror stories following ‘botched’ procedures.1,2 Some of it is deserved, due to the practice of a small proportion of people; however, the vast majority of us give excellent care to our patients.
We have a duty of care to the patient to engage with them and to undertake our work in partnership with them.3 Much of what we do is inherently reversible and reasonably safe. For example, generally speaking, our botulinum toxin injections wear off over time and our fillers can be reversed with hyaluronidase, however it’s incredibly important to stress that nothing is risk free.
Complications can occur, and we must remember that we are dealing with ‘well’ patients. We are not curing them from an illness or disease, hence not performing a treatment is always an option. The treatments that we provide are elective.
When things go right, the majority of patients don’t complain, but we all are painfully aware that sometimes things can and do go catastrophically wrong. There is also no denying that our patients are demanding. They are critical of their appearance and are coming to us to improve their look; this is why it is incredibly important to express every possible outcome, good and bad, before any procedure takes place.
Whatever our attitudes to consent were in the past, the pivotal Montgomery case in 20154 was a landmark for informed consent in the UK and significantly changed the playing field for us as aesthetic practitioners.
When things go right, the majority of patients don’t complain, but we all are painfully aware that sometimes things can and do go catastrophically wrong
The Montgomery case had nothing to do with aesthetic practice, but the implications of it are important for all specialities. From a legal perspective, prior to Montgomery, the Bolam Test in England was used to determine what should be disclosed in a consultation.5 This tested whether a doctor’s conduct would be supported by a responsible body of clinicians. Whenever someone puts themselves forward as a professional, which all medical aesthetic practitioners do, the rule applies. So, previously if a responsible body of aesthetic practitioners felt that the amount of information provided was reasonable and what they would have done, it was acceptable in law. The Bolam Test still stands as the basis of all clinical litigation, however I believe that the Montgomery case has changed the way people view it.
The case involved Nadine Montgomery, a woman with diabetes and of small stature. She was pregnant and delivered her son vaginally. He sadly experienced complications owing to shoulder dystocia resulting in hypoxic brain damage with consequent cerebral palsy. Montgomery brought a claim against Lanarkshire Health Board,6 alleging that she should have been advised of the 9-10% risk of shoulder dystocia associated with vaginal delivery, despite the mother specifically asking if the baby’s size was a potential problem.7 Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section. She was effectively deprived of choice.
The Supreme Court ruled in her favour in March 2015. It established that, rather than being a matter for clinical judgment to be assessed by professional medical opinion, a patient should be told whatever they want to know or what a patient in her position would reasonably need to know, not what the doctor thinks they should be told.7
The final judgement should be read and absorbed by us all. The ruling stated:6
This case sent shock waves through the medical profession and in my opinion, really made practitioners contemplate the exact nature and aims of the consent process
It was a clear boost for patient autonomy over medical paternalism and we in the aesthetics world do need to heed the warning. We are interfering with our patient’s bodily integrity and so the consent process must be robust.
This case sent shock waves through the medical profession and in my opinion, really made practitioners contemplate the exact nature and aims of the consent process. Fear of litigation is a potent tool to change practice and sadly it sometimes takes cases like this to stimulate a shift in how we work.
In our aesthetic practice, the risks can often but not always, be addressed with the use of hyaluronidase, knowledge of anatomy and adherence to strict treatment protocols to name but a few, however some patients do still run into serious complications such as vascular necrosis or even blindness due to intravascular injection of filler material.8
We need to understand that we have now moved from the ‘reasonable practitioner’ to the ‘reasonable patient’ test as the marker for consent. What I mean by this is that we must understand what that patient, in their situation, would want or need to know.
With this in mind, we have a duty to educate patients and inform them about what we are going to do and what the possible complications are. Furthermore, it is vital that we engage with the patient on their level and understand what they want and their specific circumstances. For example, I always assess what their baseline understanding is of the procedure and the potential benefits. I also try and understand the ‘why’ of their desire for treatment. It is an active process and not a passive one.
I’d also be sure not to over-complicate the patient with typical medical vocabulary with fear that they may not fully understand. For example, I would use the phrase ‘muscle that lifts your eyebrows’ rather ‘frontalis muscle’. We need to explain the procedure in layperson’s language, the various minor and major side effects and risks should be listed and explained in a non-intimidating manner.
Always remember that a patient cannot consent to negligent treatment and so, if a complication such as ‘looking worse’ is on the consent form and the patient ends up with a significant disfigurement due to a breach of duty, then the consent becomes meaningless and they are entitled to make a claim for negligence. So, for example if a patient develops an infection because you used an obviously contaminated product, they can still sue for breach of duty even if the risk of infection is clearly stated on the consent form.
I would strongly recommend adopting the practice of utilising procedure-specific informed consent forms, which can talk about the intricacies and inherent risks of the specific treatment the patient is to experience. I have a separate consent form and patient information sheet for every procedure I undertake. Clearly the risks of vascular occlusion are real in filler work but would be unlikely in anti-wrinkle injection treatment.8 Procedure specific complications such as ptosis after botulinum toxin injection are not relevant for facial peel work and their inclusion would only serve to confuse the patient.9
A signature is not enough. Quantification of the risks, for example by the use of percentages, where possible, is advisable. This is based on benchmarked standards which you can adapt to your own practice over time. I would encourage practitioners to document treatment alternatives, including the most obvious one of not doing anything and encourage their patients to actually read the form out loud or read it for them.
In my opinion, a final confirmatory sentence should read something like the following, ‘I acknowledge that I have read this form and have understood the contents. I have been given the opportunity to ask questions, and my questions have been answered to my satisfaction. The risks and benefits of this treatment have been explained to me as well as the option of not having the procedure at all. I understand that there are no guarantees’.
It is important that we take our aesthetic practice seriously and make a conscious effort to engage with the patient to ensure we are working in partnership. Consent that consists of ‘Just sign here’ is a practice which should be discouraged. If something does go wrong, and we hold up a form telling patients that they agreed to something they did not, fuels litigation and complaints which we all wish to avoid for the sake of ourselves, the patient and the profession.