New candour and consent guidance from the General Optical Council

08 Mar 2017

The General Optical Council (GOC) published on Monday (6 March) new guidance for registrants on the professional duty of candour.  The guidance expands on the joint statement that was produced in conjunction with the other healthcare regulators, and follows in the wake of guidance produced jointly by the GMC and the NMC and separate guidance from the GDC.

BLM responded to the GOC’s consultation process last year and was encouraged to see that the GOC took on board the feedback provided by BLM and other stakeholders, making amendments to the final version.

What do the standards of practice require?

The candour provisions in the Standards of Practice for Optometrists and Dispensing Opticians are set out in the guidance and require:

19. Be candid when things have gone wrong

19.1 Be open and honest with your patients when you have identified that things have gone wrong with their treatment or care which has resulted in them suffering harm or distress, or where there may be implications for future patient care. You must:

      19.1.1    Tell the patient or, where appropriate, the patient’s advocate, carer or family that something has gone

      19.1.2    Offer an apology.

      19.1.3    Offer appropriate remedy or support to put matters right (if possible).

      19.1.4    Explain fully and promptly what has happened and the likely short-term and long-term effects.

      19.1.5    Outline what you will do, where possible, to prevent reoccurrence and improve future patient care.

19.2 Be open and honest with your colleagues, employers and relevant organisations and take part in reviews and investigations when requested and with the General Optical Council, raising concerns where appropriate. Support and encourage your colleagues to be open and honest, and not stop someone from raising concerns.

19.3 Ensure that when things go wrong, you take account of your obligations to reflect and improve your practice as outlined in standard 5.

What does the guidance say?

  • Inform the patient asap – when the registrant becomes aware something has gone wrong they should inform the patient, there is no need to wait for the outcome of an investigation and the guidance includes a discussion of what information to share and how to share it.
  • Apologise – registrants must offer an apology (which is not the same as an admission of liability or wrongdoing) and record details of the apology in the patient’s clinical record.
  • Near misses – if no harm or distress results from an adverse event, registrants should use their professional judgment to consider whether to inform the patient.
  • Learning from adverse events – lessons should be learnt from adverse events to protect future patients from harm.  Registrants should:
    • Regularly review and audit standards and performance, taking steps to resolve any problems;
    • Consider what action to take to prevent recurrence – collate, review and share information.
  • Registrants with high profile or management responsibilities – must set an example and encourage openness and honesty in reporting adverse incidents and provide advice and guidance to colleagues.

Practical steps

  • Para 15 of the guidance states that an appropriate person, usually the lead or accountable clinician, should take responsibility for speaking to the patient. Our view is that each optical business should define the term “appropriate person” so that every employee is clear in terms of accountability. For example, it may be the treating clinician or the store director.
  • Optical businesses should ensure that all staff and directors are fully trained in the requirements of the duty of candour and that there are established policies and procedures to follow when something has gone wrong with the care or treatment of a patient.
  • Optical businesses should be able to demonstrate compliance with the duty of candour, from a record-keeping, audit and regulatory perspective. Businesses may wish to introduce a template record for such purposes.
  • Optical professionals should be informed and aware of the support open to them both in complying with the duty of candour and raising concerns where they feel that compliance with the duty of candour has been obstructed.

Consent guidance

The GOC has also drafted new supplementary guidance on consent.  The guidance has been approved by the Council and is expected to be published in April 2017.

Consent is a complex area and guidance for registrants should be welcomed.  BLM raised concerns during the consultation process that the guidance contained too much detailed information, which registrants may find overwhelming and which detracts from the important aspects of the guidance. Whilst the GOC took on board BLM’s suggestion, that it would be more user-friendly and clearer to include links to separate sources of information, the guidance remains a lengthy (20 page) document, with separate legal frameworks for assessing capacity to consent for England & Wales, Scotland and Northern Ireland contained as an annex to the main guidance document.

What do the standards of practice require?

The consent provisions in the Standards of Practice for Optometrists and Dispensing Opticians are set out in the guidance and require:

3. Obtain valid consent

3.1 Obtain valid consent before examining a patient, providing treatment or involving patients in teaching and research activities. For consent to be valid, it must be given:

3.1.1 Voluntarily.

3.1.2 By the patient or someone authorised to act on the patient's behalf.

3.1.3 By a person with the capacity to consent.

3.1.4 By an appropriately informed person. “Informed” means explaining what you are going to do and ensuring that patients are aware of any risks and options in terms of examination, treatment, sale or supply of optical appliances or research they are participating in. This includes the right of the patient to refuse treatment or have a chaperone or interpreter present.

3.2 Be aware of your legal obligations in relation to consent, including the differences in the provision of consent for children, young people and vulnerable adults. When working in a nation of the UK, other than where you normally practise, be aware of any differences in consent law and apply these to your practice.

3.3  Ensure that the patient’s consent remains valid at each stage of the examination or treatment and during any research in which they are participating.

What does the guidance say?

  • Principles of consent – right of patients to determine what happens to their own bodies and make informed choices.  Valid consent must be obtained at the point of care and throughout treatment.
  • Types of consent – explicit or implied, use professional judgement to decide which type is required.
  • Obtaining valid consent – given voluntarily by an appropriately informed person who has the capacity to consent.
    • Voluntary consent – without coercion from healthcare professionals, relatives or others, be aware of situations where patients may be vulnerable.
    • Informed consent – an ongoing process, provide clear and accurate information in an appropriate way, using professional judgement.  Consider potential barriers to understanding 
    • Capacity to consent – most adults presumed to have capacity but check legal framework and consider listed factors when assessing capacity.
  • Refusing or withdrawing consent – patient’s right to be respected even if not in patient’s best interests.  Explain consequences, record decision, discussions and advice.  Raise the issue with healthcare colleagues or people involved in their care and get legal advice if necessary where risk of serious harm from refusal.
  • Recording consent – use professional judgement to determine when and how to record consent, record if a patient refuses or withdraw consent.
  • Consent to share patient information – most patients understand and expect some sharing of information for provision of care.  Consent implied if specified criteria met.  Explicit consent required if information being used in ways not reasonably expected.
  • Emergencies – in an emergency, treatment can be provided where consent cannot be obtained, if it is in the patient’s best interests and is needed to save their sight or prevent deterioration in their condition, unless there is a valid and applicable advance decision refusing consent.

The GOC recognises the complexity of consent issues in its guidance, advising registrants to seek advice from colleagues, employers, professional indemnity insurance providers, professional or representative bodies or legal advisers. 

BLM is happy to provide further advice and/or training on the new guidance, to assist registrants in complying with their duty of candour obligations and/or on consent issues more generally, as required. 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Rosie Shapiro

Rosie Shapiro

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