In my role as a solicitor who acts for patients who have sustained avoidable harm because of medical negligence, patients often tell me the clinicians who treated them didn’t listen to them. Patients may wonder if they’d been given more information or been more involved in decisions about their medical treatment, their outcome might have been better.

In this blog I hope to help explain the distinctions and relationship between shared decision-making and informed consent – both fundamental to good healthcare – and ways to avoid the problems highlighted above. 

Shared decision making

While some patients still defer entirely to the advice of their treating clinician, gone are the days where the “doctor knows best” approach is appropriate.

At its core, shared decision making is a collaborative process whereby a clinician supports a patient to reach a decision about their medical treatment. It is a partnership that ensures patients are able to make decisions that are right for them. What is right for one patient, won’t necessarily be right for another.

It’s important to remember shared decision making doesn’t mean a patient is left buried under a sea of medical research, evidence and treatment options, and expected to make hugely significant decisions about their treatment alone. Rather, it provides the opportunity to choose to what extent they wish to engage in that process and, for example, they want to involve their family members, friends, carers or advocates.

Crucial to shared decision making is the exchange of information between doctor and patient; based not only on the clinician’s expertise and medical evidence but also on the patient’s individual preferences, beliefs and values. Indeed, together that joint decision might in fact result in no treatment at all.

Why is this important? Because it is increasingly acknowledged that by empowering patients to make decisions relevant to their own care, a truly patient-centred health service emerges. Recent surveys have shown that people want to be more involved when it comes to making decisions about their own health and care.[1],[2]  It also ensures patients understand the risks, benefits and possible consequences of different options and reduces the instances where a patient feels railroaded into a decision about their own health.  

Informed consent

Many patients will now be familiar with the concept of informed consent. In basic terms, where a patient is not given the information they need, or perhaps the time and support required to read and weigh up that information, a clinician runs the risk of failing to obtain their patient’s consent for any treatment that follows. In those circumstances, serious harm may occur and, sometimes, the harmed patient will consider taking legal action against the doctor or the hospital.

NHS England describes informed consent as requiring people with capacity to make decisions about their care and treatment to be thoroughly advised about their treatment options, and the risks associated with each option.

In practice, this means clinicians must take reasonable care to ensure patients are aware of any material risks involved in any proposed treatment, as well as the existence of alternative, reasonable, treatments. This means clinicians must not make assumptions about what information a patient might want or need. Instead, the decision whether a risk is material is determined by the views of a reasonable person in the patient’s position. In that sense, clinicians are no longer seen as the sole judge of what is material risk.

Importantly, only when a patient has received and understood the information about their diagnosis, proposed treatment and its implications, can they be said to be in a position to give informed consent in accordance with their own values and wishes.

What is capacity?	What is reasonable care?	What are material risks?
Capacity means the ability to use and understand information to make a decision, and communicate any decision made.	Care that most doctors would provide and that is logical to provide, not just common practice.	Whether, in the circumstances of the particular case, a reasonable person in the patient's position would consider something to be a risk, that the doctor is or should reasonably be aware that the particular patient would be likely to consider something a risk.

Conclusion

To my mind, shared decision making is different to, but can’t be entirely distinguished from, a clinician’s duty to obtain informed consent. Instead, the requirements of the shared decision making process contributes to the validity of a patient’s ability to consent.

If a patient is not given the information they want and need about their treatment or they aren’t given the opportunity to engage, by asking questions for example, then shared decision making is not possible. In those circumstances, a patient is denied the legal and ethical right to engage in their medical care which can lead to poor outcomes – both in terms of patient experience and worse still, potential claims in negligence.  

[1] Ipsos MORI. NHS Inpatient Survey 2020. November 2020. Available from: https://nhssurveys.org/wp-content/surveys/02-adults-inpatients/01-design-development/2020/Survey%20development%20report%20V2.pdf. Last accessed November 2022.

[2] NHS England. GP Patient Survey 2022. Available from: https://www.england.nhs.uk/statistics/2022/07/14/gp-patient-survey-2022/. Last accessed November 2022.

Joshua Hughes, a Partner and Head of the Complex Injury team at the lawyers, Bolt Burdon Kemp