CONSENT BASICS

• For a competent patient, go to CONSENT WITH CAPACITY
• For a patient without capacity, go to CONSENT WITHOUT CAPACITY

• The three guidelines on consent outline assessing and informing adult patients (aged ≥18 yr), so they can give valid consent
• The greater the associated risks, the more stringent the consent process
• make comprehensive notes in the medical records

Assessing competence

• Adult patients are assumed to be competent unless it is proved otherwise
• if patient able to understand, retain and weigh up information needed to make decision and is able to communicate this decision back to you, assume competence
• unexpected decisions do not prove that a patient is incompetent, but may indicate the need for further information or explanation
• patients may be competent to make some healthcare decisions, even if not competent to make others

Capacity assessment

• Does the person have an impairment or disturbance in the functioning of his/her mind or brain?
• If the answer to this question is ‘yes’, has the impairment deprived him/her of the capacity to make this particular decision?
• In order to answer the second question, can the patient:
• understand information about proposed treatment, its purpose and why it is being proposed?
• retain information for long enough to make an effective decision?
• use or weigh that information as part of the decision-making process?
• understand the benefits, risks and alternatives?
• understand the consequences of his/her refusal?
• communicate his/her decision (whether verbally, using sign language or other means)?

Any doubt or disagreement whether the patient has capacity

• An application to the court MAY be necessary
• Seek advice

When

• Consent is required before an adult is examined, treated and cared for
• Consent must be given before commencing a procedure or treatment other than in exceptional circumstances, such as:
• life-saving procedures and emergencies

Expressed consent

• Must be obtained for any procedure carrying a ‘material risk’

Written

• Expressed consent is usually given by signing a consent form which does not in itself prove that consent is valid
• can be given orally with written documentation supporting the oral discussion
• need not necessarily be spoken, but clear and interpretable (e.g. hand squeeze) and given free from duress
• The law requires explanation of all ‘material risks
• Record expressed consent in patient’s clinical records
• a consent form alone is not enough

Implied consent

• Assumed when, following explanation of the proposed procedure/treatment, patient indicates willingness to proceed by co-operating, for example:
• extending arm to have blood taken
• Good practice to document the actions/conversation around implied consent 

• Consent must be given voluntarily
• not under any form of duress or undue influence from healthcare professionals, family or friends
• A competent adult has the right to refuse treatment
• even if the decision seems irrational, it is ethically wrong to persuade him/her otherwise
• his/her refusal is binding
• If the patient refuses, ensure s/he clearly understands the implications of refusal e.g. that it may result in death
• A patient can withdraw consent at any time and has the right to stop treatment at any stage
• if there is any doubt, check that the patient still wishes to proceed

Pregnancy

• A competent pregnant woman may refuse treatment, even if this would be detrimental to the fetus
• Where a fetus is placed in danger as a result of a mother’s refusal of treatment, seek advice
• it may be appropriate to revert to the Court of Protection

Exception to voluntary consent

• The only exception is treatment for a mental disorder in a patient detained under the Mental Health Act
• This does not preclude the individual from giving or withholding consent to treatment for physical conditions
• assess the patient’s capacity to consent as above

• For a competent patient, go to CONSENT WITH CAPACITY
• For a patient without capacity, go to CONSENT WITHOUT CAPACITY