Consent must be freely and voluntarily given by a patient with capacity who has been given all the information he or she needs to reach a decision
Types of consent
Consent may be given orally, or it may be implied - as when a patient rolls up their sleeve and offers their arm so you can take their blood pressure.
For more complicated procedures, you must obtain the patient's express consent, and this will usually be in writing, by signing a consent form. It is vital that you give the patient all the information they need about the procedure and clearly document the information you have given the patient in their notes.
To be valid, consent must be freely and voluntarily given by a patient with capacity who has been given all the information he or she needs to reach a decision. Patients should not be subjected to undue pressure or influence by medical staff or their family or friends.
What is capacity?
Capacity is defined in the Mental Capacity Act 2005, section 3 (1). A person has capacity to make a decision for themselves if they can:
- understand the information relevant to the decision,
- retain that information,
- use or weigh that information as part of the process of making the decision, and
- communicate their decision (whether by talking, using sign language or any other means).
If any one of the four criteria is not met, the patient will be considered to lack capacity. If you have any doubt about the patient's capacity you should not proceed but instead seek the advice of your consultant or the MDU.
You should consider consenting the patient as a 'process' rather than a single act. You must ensure that you have given the patient all the information he or she requires to decide whether to undergo the treatment - otherwise the consent you have obtained will not be valid, even if the patient has signed the consent form.
GMC guidance on consent sets out in detail the information you should provide.
The GMC updated its guidance on consent in November 2020. The updated guidance, Decision making and consent, places greater emphasis on doctors and patients taking decisions together based on exchange of relevant information specific to the individual patient.
- the diagnosis and prognosis
- any uncertainties about these, and options for further investigations
- options for treating or managing, including the option not to treat
- the purpose of any proposed investigation or treatment and what they would involve
- potential risks, benefits, burdens and likelihood of success for each option
- the right to a second opinion.
Although it is ultimately the responsibility of the doctor carrying out the procedure to ensure that the patient has given valid consent, this is a job which is routinely delegated to junior doctors. If you are asked to consent the patient you must ensure that you have an adequate knowledge of both the patient and the procedure to do so competently or you may be vulnerable to criticism.
Never be afraid to ask for help from your seniors, or ring the MDU advice line, if you have any concerns or questions.
It is your first week in your first job and you are on duty on the adult surgical ward. Your consultant is busy in outpatients and asks you to 'consent Mr X for the afternoon list'. This is the first time you have had to consent a patient.
Before you thrust the consent form into the patient's hand to sign, stop and think... Is this necessary? Is it important? Why do we do this?
The answers are: yes, yes, and because without the patient's consent, any treatment - or even touching - could be construed as a crime or civil offence.
Let's get technical...
- Consent represents the ethical and legal expression of a person's right to have their autonomy and self-determination respected.
- It may well be unlawful for doctors to treat patients in the absence of consent or other authority, and those doing so could commit both the crime of battery and the tort of trespass to the person1.
- A doctor may treat without consent in a patient’s best interests as a matter of necessity in an emergency, where the patient lacks capacity. However, if the patient has capacity it is no defence to argue that treatment without consent was in the patient’s best interests.
In other words, touching a patient without proper consent could leave you vulnerable to a civil or criminal charge of battery and, if the patient suffers harm as a result of the treatment, a claim in negligence. The patient may also lodge a complaint under the NHS Complaints Procedure or directly with the GMC, and you may also face Trust disciplinary proceedings.