The scenario

A medical student was asked by the surgical FY2 to take blood from a patient who had just had a procedure done under general anaesthetic.

The student approached the patient and introduced himself. He told her he was there to take a blood sample. The patient was very sleepy, but moved her left arm slightly as if presenting it for blood sampling. The student noticed that she had an intravenous line in that arm and so proceeded to take the sample from the right arm.

The next day he was told by the FY2 that the patient had complained. She had previously had breast cancer and surgery on the right side, and she had lymphoedema in that arm. She had specifically stated that she did not want any blood sampling or cannulae in that arm, and said the student had not only taken blood without her consent – but also against her specific wishes.

MDU advice – what makes consent valid?

In order for consent to be valid, it must be:

  1. Voluntary – the person who is being asked for consent must make the decision themselves, with no undue pressure from anyone else.

  2. Informed – the person being asked for consent must know what the treatment or investigation entails, including the risks, benefits and alternatives, and the person consenting must have the capacity to make the decision.

An adult patient is assumed to have capacity unless it is proven otherwise. A patient with capacity should be able to understand the decision to be made, to recall it long enough to weigh up the decision to be made, and communicate the decision by talking, using sign language or by any other means.

A patient with capacity can consent or refuse any treatment or investigation for any reason, or no reason at all.

Loss of capacity

Patients may have permanent or temporary loss of capacity. Temporary loss of capacity can occur as the result of unconsciousness, or if the patient is under the influence of medication.

Consent may be implied or explicit. Explicit consent can be given verbally or in writing. The GMC's guidance Consent: patients and doctors making decisions together (2008) says that for minor or routine investigations or treatments, it is usually enough to have oral or implied consent if you are sure the patient understands what you propose to do and why.

In cases which involve higher risk, consent should normally be written. By law, you have to get written consent for some treatments, such as fertility treatment.

Patients may give implied consent for minor procedures or examinations by complying with the proposed procedure, for example by rolling up their sleeve and putting out their arm to have blood pressure taken.