Consent to treatment
To treat patients without their consent is a violation of their constitutional rights and transgresses a fundamental principle of medical law. The basic rule is simple: no-one has the right to touch anyone else without lawful excuse and if doctors do so it may well undermine patients’ trust.
Such behaviour may lead to a clinical negligence claim, a complaint to the Medical Council or even civil or criminal proceedings for assault. There are three components to valid consent:
- Capacity
- Information
- Voluntariness
As a matter of good practice, note in the patient’s records the nature of the discussions that have taken place
Box 2: Points to remember about consent
- To be valid, consent must be freely given by a patient with capacity making an informed decision.
- Consent is much more than a signature on a form.
- Patients have a right to information about their illnesses, the investigations and treatments proposed. You have a corresponding duty to provide adequate information and warnings, and to answer questions truthfully.
- The amount of detail you provide about risks, alternatives and possible adverse outcomes will depend on the circumstances – eg, degree of urgency – and on the patient’s individual requirements.
- Communicate information in terms that are easily understood by the patient.
- If you are proposing an invasive procedure, you should inform the patient
about risks associated with the anaesthetic and risks associated with the
procedure itself, especially if they might affect the patient’s decision to proceed. - Discuss a procedure with a patient only if you are sufficiently knowledgeable to answer their questions.
- If you are responsible for delegating the task of obtaining consent, you must be confident that your delegate has the appropriate knowledge and experience.
- Never coerce a patient into a decision – the patient has the right to refuse consent.
- As a matter of good practice, note in the patient’s records the nature of the discussions that have taken place.
- The consent form, signed and dated by the patient and doctor, is part of the clinical notes and should be filed with them.
- If you are in any doubt about obtaining a valid consent, discuss your concerns with a senior colleague or an MPS medicolegal adviser.
A patient may give express or implied consent to a procedure. In many circumstances, implied consent is sufficient – eg, if the patient undresses for an examination – but in cases where the proposed procedure or treatment is complex, invasive or may have significant consequences for the patient, it is important to obtain express written consent.
You are also obliged by law (Control of Clinical Trials Act 1987) to obtain the written consent of participants before including them in clinical trials or research.
Be sure to allow the patient enough time to consider your advice and to reach a decision. If a patient feels that the consent has been “rushed”, a negligence claim may ensue, regardless of whether the procedure is carried out competently or not.