In this episode, Anita Rao and Flora Jago explore the complex and sensitive issue of managing disputes in patient care. Drawing on their extensive experience advising clinicians and NHS organisations, they break down why disagreements arise, how to identify the root of the issue, and the practical steps clinicians can take to resolve disputes early and safely.

The discussion covers the key legal frameworks for decision‑making across different patient groups, and highlights the common themes seen in paediatrics, end‑of‑life care, cases involving adults who lack capacity, and situations where patients with capacity make decisions that clinicians may find difficult or unexpected.

In this episode, Anita and Flora discuss:

• The two‑stage decision‑making process in England and Wales: clinical judgment and patient choice

• How consent works in practice, and why it must be a meaningful process rather than a signature

• Why disputes often arise: divergent expectations, clinical uncertainty, communication gaps, cultural and emotional factors

• The unique challenges in paediatric decision‑making, including parental responsibility and Gillick competence

• How best‑interest decisions are made for adults who lack capacity, and the role of LPAs and deputies

• The rights of adults with capacity to make decisions clinicians may consider unwise

• When and why the Court of Protection or High Court may become involved

• Practical steps to avoid escalation and support better communication

For more guidance, resources and updates on healthcare law, visit our website at https://www.hempsons.co.uk/

Hi everyone, and welcome to another episode of the Hempsons podcast. This time, we're dealing with the subject managing disputes in patient care. My name's Anita Rao, and I'm a partner in Hempsons’ London advisory division, and I'm joined by my colleague today, Flora Jago, to talk a little about these common scenarios, challenges, and to give our thoughts on how these disputes, even the seemingly intractable ones, might yet be capable of resolution.

Thank you, Anita. I know we've both supported teams navigating disputes, whether that's in paediatrics, adults who lack capacity, or end of life decisions, and we've really seen first hand how complicated they can be. So, what we're hoping to do today is break this down into a few key points, keeping a focus on the practical ways to handle disputes that can arise around patient treatment, consent, and best interest decisions.

Exactly, and I think the first step in this is perhaps take it back to basics with understanding the two stage decision making process that really underpins patient care in England and Wales. As far as I'm concerned, I really break it down as follows. Stage one is your clinical judgment, and that's entirely within the clinician's own domain. The clinician is the one who determines what is clinically appropriate and what the clinically appropriate treatment options are. And, apart from following basic public law principles of reasonableness, rationality, lawfulness, taking into account, you know, all relevant factors and not taking into account irrelevant ones. Beyond that, a clinician can't be compelled to offer treatment which they don't think is clinically indicated or in the patient's best interests.

Absolutely, and that's our stage one. And then stage two is when we focus more on the role of the patient. So, once you've identified those viable options, the patient is the one who chooses between them. And it's also really important to remember that those viable options will always need to include doing nothing. Patient choice is the part where the consent process comes in. So, really want to emphasise here that that is a process, not just a signature on a form. Consent requires a meaningful dialogue, focusing on that individual patient's values, their circumstances, their priority, what really matters to them, essentially. And the signature on the form is the conclusion or one key point of that process. It is not sufficient to negate the need to do all of those other parts of that meaningful dialogue as well. And for children, young people, and adults who lack capacity, there's someone else who steps into that decision making process. But there's some key limits on that that we’ll come to.

Absolutely. But I mean, Flora, in your experience, what do you think retaining focus on this two stage process can help clinicians with?

I think there's always a value in these kind of really complicated cases that can sometimes feel intractable about going back to basics and being really clear about who has what role in the process, and therefore identifying where in the process we think that dispute is actually arising. And, you know, as we've both said, we've experienced a lot of these disputes in practice, as I know many clinicians will have done. So, Anita, can you give us a sense of some of the common scenarios that we see giving rise to these sorts of disputes?

Sure, and I mean, I think the first thing to say is that they're almost always rooted in human factors, even in the most complex clinical cases. And certainly I think, I wouldn't be doing an unfairness by saying that there are a couple of big themes. The first is divergent expectations. Perhaps people holding deeply entrenched beliefs about what outcomes are actually achievable, compounded by perhaps kind, but often euphemistic language. You know, we've all heard ‘they're a bit poorly’, for example, which can inadvertently make this worse. And they're being used entirely kindly and out of compassion, but unfortunately, families then misunderstand the seriousness of the situation, which then leads to that divergence of expectation.

The second situation, I think is then one of clinical uncertainty. So, those complex or rare clinical scenarios which create space for disagreement, perhaps even within the clinical teams, you know, between specialties or within organisations, communicating a clear message to the family on what that complexity is, and therefore what it does to decision making is hard enough, let alone then to empower them to make decisions against that background. So, that's another common scenario I've found. Otherwise really, it's what I'd call the kind of wider emotional and cultural dynamics perhaps of certain cases. So, where, you know, we're talking about end-of-life care, where you're talking about paediatrics cases concerning babies, small children, even big children, or cases where an individual's religious or cultural values can heighten their feelings about a particular treatment option or issue. And it's a projection of, you know, of those values then that starts to inform some of the decision making that those individuals are making, and it can be quite hard to sometimes work with that when, from a clinical perspective, you're coming from a slightly different standpoint.

And then to add into all of that, you have the heightened emotions of the situation itself, which then can exacerbate intrafamily disputes, you know, exacerbate longstanding family tensions, which spill into decision making. Family perhaps feel that they're being pressured to make a decision, which is overwhelming for them, and it can overwhelm even the most resilient of people. And so, you know, I think it's then useful to think about what are our ways through this? And there are probably specific patient groups that we can discuss, Flora, the first being children who are, you know, anyone from zero to 15. What are your thoughts on that?

Yeah, absolutely. So, those themes that we've identified often percolate through many different disputes, but there's different frameworks for different categories of patients. So, it's really worth being aware of the specific challenges that can come up in that context. So, with children and young people, it's really important to be aware of the sort of trifecta that we have of people involved in that decision making process. So, it's not just the patient and their clinician, you've got, usually the patient child, you've got their parents, and you've got the clinician. So that's a three-part sort of decision making process where there's a number of different factors to consider.

So, the default decision maker is going to be the person with parental responsibility, unless the child has been assessed as being Gillick competent. And what that means is that there's a number of different routes where objections could arise. So, you could have one parent objecting, and it's worth noting that in theory, you only need consent from one person with parental responsibility, where a child lacks Gillick competency. But if you've got an active objection, that can be really challenging. You might have both parents objecting, or if the local authority has parental responsibility as a corporate parent, then that means that they could be unwilling or feel unable to consent to the intervention.

And then practically it might be that you have a Gillick competent child who refuses to consent, or it might be that you have a child who lacks Gillick competency, but is practically refusing whatever intervention that is something that you'd like to provide. With the 16 and 17 year olds, it's a slight difference in that they are assumed to be the decision maker unless they are assessed to lack capacity under the Mental Capacity Act, and you can then rely on parental responsibility for that decision if they do lack capacity. But that doesn't automatically override a young person's decision if they do have capacity. So that can be another source of tension that can really be a complicating factor, and I think we see some of those themes pass on into adults who lack capacity as well, Anita.

Absolutely, and I think it's that, it starts at 16 to 17 and then when you go over the age of 18 into the adult territory, if you have an adult who lacks capacity - which obviously needs to be determined on a decision specific and time specific basis - then the question is, how do we take decisions for those individuals? And I think there's probably three things that you'll need to do immediately.

Firstly, obviously confirm that the individual lacks capacity in relation to the relevant decision, and you're not sort of making a generalisation about them lacking capacity, which I know is sometimes something we see. The second step is, is there someone else who can stand in their shoes? Is there a holder of a valid lasting power of attorney for health and welfare and that health and welfare LPA applies to the current situation? If so, then good, then you, you know that individual can step into the shoes of the patient. Similarly, is there a deputy who has been appointed by the court to make those relevant decisions? And again, that person would step into the shoes of the patient, if so. And I think the thing we most commonly see though, is if you don't have either, then you're in the framework of best interest decision making. And indeed, if you feel that the LPA holder and the deputy aren't making best interest decisions, then you might be in this situation anyway.

So, I think it's important for us to remember when the clinician is taking a best interest decision that it's informed not just by their clinical assessment of what's appropriate, but also by what the person would've wanted for themselves, which is something that you often can only know through consultation with friends, family, and other persons involved in the patient's life. And that consultation obviously needs to be proportionate to the decision at stake. The family's views of what they would want for the person are important, but they're not determinative. You know, the central point to try and ascertain in those discussions with family is what that person would've wanted for themselves. And taking all of that into account, the best interest decision then falls to be taken by, often the lead treating clinician. So, it sits with you. It doesn't sit with the family. And I think some families can feel that it is up to them. But it's important that the person providing the treatment makes clear that they are the lead decision maker. It can allay some families’ concerns, but also it really does make clear who the decision sits with at the end of the day. And if after all of that, there is not an agreed way forward, then obviously we might be talking about the court of protection, particularly for disputes, for example, about whether or not someone has capacity about their best interests or indeed about whether or not the holder of an LPA or a deputy is acting in an individual's best interests. So that's the place of last resort ultimately.

And moving then to adults who have capacity. The starting point and general position for those individuals is it will almost always be the case that their decision about what they would like for themselves is determinative. So long as they have all the relevant information, they've been taking through the pros, cons, risks and benefits of both courses of action, their decision is theirs to make and I think sometimes it. You could feel uncomfortable with that because sometimes someone might be making, perhaps from a clinical perspective, what's seen as an unwise decision or a poor decision. So just because it's an unwise decision doesn't mean that it's a decision that indicates that someone lacks capacity. And just because it's a decision that you perhaps as a clinician wouldn't have made for yourself or for your family members, doesn't mean that that gives you scope not to follow it for that individual. There are very limited options in those circumstances, and really, it's only in circumstances where a person is perhaps being made to make a decision that is not their own, by which I mean, you know, some undue influence, some form of coercion, that you would generally be thinking about an application to the high court. But again, it's fairly exceptional for those to be made and even more exceptional for orders to be made for interventions against a person's own wishes and feelings. So, Flora, I think, can we wrap up with some practical tips for clinicians?

Yes, absolutely. I think there's, as we've said, there's lots of context and frameworks, which these kind of issues can arise in, but what do you do at that point? And that's hopefully what you can use as a helpful takeaway from this podcast. So, the first one is don't delay. The aim is not to wait it out and just wait for the dispute to go away. Getting clarity early and trying to understand the situation saves conflict later on.

In the interest of clarity, it's also worth really being clear about what each person's role is in the process. So, what's a clinical decision? What's a patient's decision, and where is the dispute sitting on that trajectory? Can you then also think about, can you narrow the issues? Can you identify what specifically is the problem? So, if someone's having a package of cancer treatment, for example, is it actually that their family are objecting to all of the treatment that's proposed, or is it more that they're really concerned about just the chemotherapy? If you can try and get that kind of insight, that can be really useful in helping to progress discussions and make sure you are focusing on the areas that are really subject to dispute.

The next thing is to really make sure you are applying your behaviour policies consistently. If behaviour is unacceptable, it's important that you address that via your policy. The policy should not be applied more strictly or less strictly than it would otherwise be because it's a complex background where there could be a dispute. That policy is there to protect you as clinicians to protect your trust, and it's helpful to be used as a tool in these kind of scenarios. Another key one is making sure your documentation is clear, it's comprehensive, and it's objective. Make sure that any discussions you have with family members are clearly documented in the records, and you do so in a way that does not rely on emotional descriptors, and you stick to the facts. Those records could later be examined in court by the judge, by the patient's representatives, by the family, and so it's really important to make sure that they will stand up to that scrutiny.

And most importantly, know when and know how to escalate. So, your escalation ladder might include internal discussions, including an MDT review, making sure that all the clinical team are on the same page. Then looking at an external second opinion. For example, from a suitably qualified colleague, another trust who can provide a new, fresh pair of eyes to review the situation. Looking at other trust resources, whether that be your ethics committee, chaplaincy, or psychology, to provide that emotional or psychosocial support, both for clinicians and for the family. And ethics reviews can also be really helpful in particularly complex challenging disputes. And then mediation as a next step, which, sometimes we know can feel like an unappealing option when you feel like you've talked through a dispute as much as you possibly can with the family. But it's really worth going into that with an open mind. We've seen cases that we never would've expected could have resolved at mediation be resolved in that format, and even if you don't reach a resolution, it might be that you can help narrow the issues or gain some new insight into what's underlying the concerns that the patient or their family are expressing. It's also something that the court, particularly in paediatric cases, will want to see before your final point of escalation, which would be a court application. So, whether that's the Court of Protection for adults who lack capacity, or the family division of the High Court for a case involving children.

Absolutely. And I think picking up on exactly that point, one clear message that we wanted to convey is, please don't wait until you reach that end stage of thinking about a court application to involve your legal team. Call your legal teams at the stage where you're thinking about an internal or external second opinion where you are, you know, far before you are thinking of going to other trust resources or even mediation. It's not a question of going legal, quote unquote, it's about risk management and legal support isn't just for court preparation. We exist in order to avoid court wherever possible, and so by reaching out earlier, it might help you unlock some of those intractable disputes and tying that together then. I mean, it's obvious. I think to us Flora, that disputes in patient care are some of the most emotionally charged and ethically complex situations that clinicians can face because you are dealing with people at their most vulnerable. And I think we probably see our role as supportive to try and help clinicians work with them early collaboratively, and long before anything reaches a courtroom.

I completely agree, Anita. Thank you. I hope you found this helpful today. For more details, please see our Henson's YouTube site where you'll be able to see our full webinar on this topic. In the meantime, thank you for joining us today.

Thank you.