Records, Consent and How to Stay out of Trouble

I’ve blogged about consent before (What do you call uninformed consent? Punchline: No consent at all). In that post, I reminded you that your job in getting consent is to make sure that the patient fully understands his or her options and makes his or her own decision about how to proceed.

Too often, the physiotherapist is sure he or she knows what is best for the patient and the exchange looks more like instructions and less like a dialogue. Let’s say the conversation with the patient is like a journey to a particular treatment: even if you are sure that you know the destination, this is no time to take a shortcut.

So let’s assume you DID have the appropriate conversation—what did you put in the patient record?

I’ve been sitting in with the Inquiries, Complaints and Reports Committee quite a lot recently. You might be surprised how often the issue of consent arises.

At every meeting there are one or two patient complaints where the patient says that the physiotherapist did not get consent for the treatment he or she provided. Sometimes the patient says the treatment hurt and he or she would never have consented to something that hurts. Once it was someone who said that the risk was too high and she did not consent to that. Other times patients say that they would not have consented to treatment by assistants or that they would not have consented to a treatment plan that required too many visits. Over the years, some of the complaints have been that the patient did not consent to be touched in a particular place on their body.

In almost all of these cases, the physiotherapist responds to the complaint, writing to the Committee that he or she did get informed consent. When there is disagreement like this, how can the Committee determine whose report is more accurate?

Because physiotherapists have an obligation to keep patient records, the Committee knows it can look at the patient record to clear up the dispute. As one of the Committee’s lawyers once advised, “If it’s not in the record, it didn’t happen.”

Unfortunately, all too often, not much is in the record. This can mean that the Committee may be forced to draw the conclusion that the conversation didn’t happen, or was too brief to provide the “informed” part of the informed consent.

If I were you, I would make sure that I never took a shortcut to informed consent.

I would ask the patient for consent to conduct the assessment and then, after that, I would explain the treatment plan and ask for specific consent for treatment. I would have that conversation with the patient myself, eyeball-to-eyeball, and I would make a note in the chart (something more than ticking a box, or including a consent form obtained by the receptionist).

My notes would be especially thorough if there was something unusual about the conversation (for example, Did the patient have an unusual risk profile? Or did he or she seem particularly confused or demanding? Was the treatment being discussed a controlled act?).

So I ask you, how do you manage the consent conversation? What information do you record? What makes it challenging and do you have ideas or tips for your colleagues of things they can do, to do it better?

I hope you will post your thoughts and let’s have a conversation about consent!