Dr Sally Old
Understanding who should be involved in the consent process, from children to people who lack capacity.
When someone asks you to ‘consent’ a patient, it can be all too easy to imagine that this is a straightforward matter of just getting a patient to sign a form so they can have a procedure done. However it is more complicated than that, as Lady Hale said in her judgment in the case of Montgomery, perhaps the key case regarding informed consent in the UK,
"Most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done."
Seeking informed consent is therefore going to require a dialogue with the patient and a background of knowledge not just about the procedure in question, but also the alternatives. So who should be having this discussion with the patient?
New consent guidance
The GMC’s updated guidance on consent came in to force on 9 November 2020. It reassures us that consent needn’t always be a formal, time consuming process. For procedures, like routine physical examinations, it can be a question of simply explaining what you are going to do and why, and reassuring the patient that you will stop if they ask you to, or if you realise they are experiencing any discomfort.
But for more complex decisions, or for procedures that carry any material risk, you are going to need the patient’s written informed consent. The discussion about this is likely to be carried out over a period of time, perhaps more than one consultation, and leaflets and other explanatory aids can be helpful. It may well involve several members of a multi-disciplinary team, each of whom can speak from their own area of expertise. It will involve the patient and healthcare staff asking questions, exploring the patient’s needs, values and priorities.
You can expect to be involved in consent discussions right from the start as a student and as a newly qualified doctor.
Patients will usually need time to carefully consider everything and reach a decision, though in an emergency, a proportionate approach, adhering to the key principles, is reasonable.
Who can take consent?
It’s OK for a doctor to delegate some of this ongoing process of consent to their colleagues, as long as the person they ask to do it is suitably trained and competent, they know enough about the proposed intervention and the alternatives, they have the skills to have a suitable dialogue with the patient, and they feel competent to do so.
Consideration should be given to the complexity of the discussion needed, including any uncertainties about the outcome and anything unusual about the particular patient’s condition. Also take account of which members of the team the patient has built a relationship of trust with, and what questions the patient is likely to ask.
Consent in children and people who lack capacity
Watch out for the patients where consent discussions are likely to be particularly challenging. Patients who have communication difficulties, or any potential impairment of their capacity, will need more time and support. Children who are 16 years old and over can be expected to have capacity to consent to routine treatments in their own right, but many will want to involve their parents too. Children who are younger than this may be mature enough to decide for themselves and not want their parents involved, which will require you to consider whether they are Gillick competent.
For children too young to consent themselves, their parents or a person with parental responsibility can provide you with legal authority to treat them, but involving the child in the discussion and having their cooperation will make life much easier for them, their family, and all the staff involved. For these groups of patients the assistance of appropriate specialist staff and communication aids can be invaluable.
Working within your capabilities
If you are asked to discuss informed consent with a patient and you feel out of your depth, you must speak up. In those circumstances, the GMC’s updated guidance on consent includes an expectation that your colleagues will offer you support, supervision or training, or they will make alternative arrangements.
You can expect to be involved in consent discussions right from the start as a student and as a newly qualified doctor. Initially, these are likely to be the sort of routine discussions prior to examining a patient or a simple procedure such as phlebotomy. Over time you will need to build up your knowledge and skills so that you are able to contribute to the multi-disciplinary teams approach to informed consent for more complex procedures. This should always be in a context where you feel supported to work within the level of your capability.
Dr Sally Old
Sally was a consultant clinical oncologist before joining the MDU in 2006. She trained in hospital medicine before specialising in cancer treatment, including radiotherapy. With a main interest in thoracic oncology, including lung cancer and mesothelioma, her clinical role involved producing reports for solicitors and the local Coroners. This sparked her desire to know more about medico-legal medicine. Sally has an LLM in Medical Law and Ethics from the University of Kent. She is a Member of the Faculty of Forensic and Legal Medicine and sits on its Revalidation Committee.
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