MEDICO LEGAL M A G A Z I N E
PATIENT CONSENT FOR AESTHETIC TREATMENTS – MORE THAN MERELY COSMETIC? By Greg McEwen, Partner, BLM Law, Specialises in defending complex and high value clinical negligence claims, previously for the NHSLA and now predominantly for the MPS. It’s been over three years since the Government Committee chaired by NHS Medical Director Sir Bruce Keogh published its final report into the regulation of cosmetic interventions. The report contained some 40 recommendations for change within the industry, including changes to the way in which patient consent is obtained. In April this year, the GMC published further guidance for doctors who offer cosmetic interventions.1 So has the Keogh Report produced the desired effect? Has the practice of consenting patients for cosmetic procedures changed and if so how? Around the time the Keogh Report was published in 2013, the Royal College of Surgeons’ Cosmetic Surgical Practice Working Party produced a document entitled “Professional Standards for Cosmetic Practice”. In turn, those Professional Standards referred on the issue of consent to earlier applicable guidance produced by the General Medical Council in June 2008, entitled “Consent – patients and doctors making decisions together”. The 2008 GMC guidance is not specific to cosmetic or aesthetic practice. However, in considering the responsibility for seeking a patient’s consent, it clearly recognises the possibility of consent being taken by someone other than the practitioner performing a procedure and covers the potential for delegation, at the time a reasonably widespread practice. There was early evidence of change within the cosmetic industry in the 2013 Professional Standards. At paragraph 5.2.2 it was noted that: “Consent is a process that begins at the first consultation. The practitioner should check for consent at every stage of the pre-procedure processes. Different processes should be followed depending on the relative risk level and the severity of the
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procedure. However, in general, the practitioner performing the procedure should obtain consent from the patient at least once in person and a signature indicating consent must be obtained at least once on the day of the procedure. The Working Party recognises that this is over and above that expected in the NHS but cosmetic practice is a special case where both the practitioner and the patient need to have a common understanding of the expected and likely outcome.” Within the 2013 Professional Standards, it is recommended that for invasive procedures (e.g. surgery and liposuction) consent ought to be a twostage process, with at least two weeks between the stages to allow the patient to reflect on his or her decision. It is also recommended that the operating surgeon should see the patient personally immediately before the procedure, in order to re-emphasise the consent, and should take consent at least once “even if consent has been obtained previously from another practitioner”. Subject to certain safeguards therefore, the 2013 Professional Standards still allowed for the pre-operative consultation to take place with someone other than the operating surgeon, provided the operating surgeon “re-emphasised” the consent immediately before the procedure. Bringing things right up to date, the General Medical Council published a document on 12th April 2016 entitled “Guidance for doctors who offer cosmetic interventions”. This came into effect on 1st June 2016. That guidance contains the following passage on consent: “If you are the doctor who will be carrying out the intervention, it is your responsibility to discuss it with the patient and seek their consent – you must not delegate this responsibility. It is essential to
