A short discussion of ‘risk informed shared decision-making in the emergency setting’ in the context of English Law
I recently read both ‘Realistic Medicine’, written by the Chief Medical Officer of Scotland (ref 1), and ‘Consent: Supported Decision-Making, a guide to good practice’ from the Royal College of Surgeons of England (ref 2). Both mention the Montgomery court ruling (ref 3), but interestingly the RCS guidance does not mention ‘shared decision-making’ at all, although it mentions ‘supported decision-making’ many times – whereas Realistic Medicine never uses the term supported decision-making but has many mentions of shared decision-making.
This paper by Hess et al uses ‘interesting phrasing’, such as:
‘We sought to assist patients and clinicians in making a risk informed shared decision in the emergency setting in which patients typically do not have the opportunity to learn about their condition prior to the visit and clinicians often make decisions unilaterally to facilitate patient safety and rapid treatment of life threatening conditions.’
The study by Hess et al took place in the US, which I understood had arrived at ‘Informed Consent’ before England and Scotland reached the same [legal] situation: and it is the Royal College of Surgeons, in its recent guidance about consent, which correctly explains the objective of obtaining Informed Consent from a patient, and the process of Supported Decision-Making in which the doctor provides the patient with the information necessary to consider the decision, and thus equipped the patient then makes the decision.
This is unequivocally not ‘shared decision-making’: Hess et al tell readers that ‘Compared with the usual care arm, patients in the decision aid arm had greater knowledge of their risk for acute coronary syndrome and options for care’ which equates to ‘the decision aid led to the patients being better-informed’. There are obvious complications, with the legal objective of supported decision-making as it applies during an unforeseen ‘emergency’ situation, which include:
* time constraints on how much information can be imparted to the patient
* time constraints on the process of checking if the patient understood the information
and also more complex issues, such as the patient not wanting to make the decision, and asking the doctor to decide. Or the patient expressing an objective - ‘just get on with it, and keep me alive !’ - which is ‘legally interesting’ (it amounts to ‘non-informed consent’: I decline to analyse non-informed consent, here). But, either the necessary support for the patient to express a genuinely-informed decision has been achieved, or else for some reason ‘Informed Consent’ has not been achieved. The situation is even more complex if there is a legitimate reason to doubt the patient's mental capacity, but the word-limit on rapid responses precludes discussion of that situation: I am assuming the patient is mentally capable for the purposes of this piece.
If Informed Consent has not been achieved, for whatever reason, then either the patient has expressed an ‘inadequately-informed’ decision [compared to adequately-informed consent] or else the doctor has made the decision – neither is ‘shared’.
Hess et al also tell readers:
‘The decision aid was found to be acceptable to both patients and physicians, and its use, which took an average of one additional minute of clinician time, decreased the rate of admission to an observation unit for advanced cardiac testing and cardiac stress testing within 30 days of the emergency department visit. No major adverse cardiovascular events (MACEs) were related to the intervention.’
Which viewed in terms of outcomes, looks fine. Although informed consent does not look at outcomes, in legal terms – the law examines whether the patient was informed, and not the eventual outcome of the patient’s decision (things such as ‘targets’ and ‘quality markers’ almost certainly do look at ‘outcomes’ - I can only describe this as doctors being squeezed between a legal rock and a ‘managerial’ hard place). Hess et al also tell readers:
‘While use of shared decision making might decrease clinician’s liability risk by improving the patient-clinician relationship, enhancing communication (which is often at the root of lawsuits brought against clinicians after an adverse outcome  ), and decreasing the frequency of invasive procedures,  shared decision making might increase liability risk if the care agreed on by the patient and clinician is sensible but perhaps at odds with what other clinicians would have selected without patient input, as the latter is often used to determine “standard of care.”’
This phrase ‘standard of care’ presumably applies to things aside from consent: it must describe concepts such as ‘the best treatment(s) to offer’, and in Montgomery Lady Hale was very clear about this, in section 115:
‘A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the “natural” and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide‘
And, in section 116:
‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.’
The key word is ‘autonomous’ - it is deeply perverse to blame a doctor for a bad decision which an autonomous patient had made and expressed, when senior judges are making it very clear that our law is now Informed Consent.
Competing interests: No competing interests