Dr Natalie Blakely and specialist lawyer Mandy Luckman answer key questions about the ethical and legal issues involved in obtaining consent from patients
Many aesthetic practitioners are self-employed and work from more than one clinic, so do not have control of the storage of their patients’ consent forms. The legal position is that consent forms are part of a patient’s medical records. The patient owns the information contained within the medical records but the healthcare provider owns the paperwork that contains the information. The provider therefore has a duty to protect the confidential information contained within. In the case that the practitioner works from several clinics, he or she would keep the clinical records and the clinic or hospital would keep other records, such as the nursing notes and patient co-ordinator records. Patients have a legal right to access their medical records under the Data Protection Act 1998.6 If a problem results in legal proceedings, a patient is able to authorise their lawyer to access their records on their behalf. In order to do so, the patient will need to sign a consent form authorising their lawyer to make this request.
If a request is made by the patient, healthcare providers are expected to co-operate with the terms of the Pre-action Protocol for the Resolution of Clinical Disputes, which requires disclosure of medical records within 40 days of the request. The lawyers will be responsible for reasonable copying/administration charges under the provisions of the Data Protection Act 1998. This will be at a maximum charge of £50 but is proportionate to the actual amount of copying undertaken.7
The English Court of Appeal (O’Keefe v. Harvey- Kemble)8, recently held that a surgeon had failed to inform his patient of the risks associated with her breast implant procedure prior to undertaking the operation, most notably the high risk of encapsulation. When this risk materialised the patient brought a claim on the basis that the surgeon had not informed her that this was a potential risk. The court decided that it was more than probable that the patient would have chosen not to undergo the surgery had she been made fully aware of the risks. This case also highlights the importance at the initial consultation of clinicians assessing patient expectations and providing clear written advice and information about risks for patient consideration at a later date. Consent must be obtained before the procedure so that patients are able to consider the information presented to them and voice any concerns or queries that they may have.
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