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.
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
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.
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 and 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 the patient can understand.
- 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.
- The person who will be undertaking a procedure is ultimately responsible for obtaining valid consent. He or she may delegate the consent process to a suitably qualified colleague, but the delegate must be familiar enough with the procedure to explain it fully and to answer all the patient’s questions.
- Never coerce a patient into a decision – a competent 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 valid consent, discuss your concerns with a senior colleague or an MPS medicolegal adviser.
Capacity
Doctors should presume that adults have the capacity to consent to or refuse a proposed treatment unless it can be established that they lack that capacity. Each assessment of an individual’s capacity should relate to a specific decision – a patient may, for example, be incapable of understanding the complex implications of a major procedure like a liver transplant, but still be able to comprehend the risks and benefits of diathermy to remove a wart.
The test of capacity currently applied in the Irish courts is the “C test”, which derives from the English case of Re C. The test is in three parts, all of which have to be fulfilled for a patient to be deemed competent to make the decision they are being asked to consider:
- Does the patient comprehend and retain treatment information?
- Does the patient believe that information?
- Does the patient weigh that information, balancing risks and needs, to arrive at a choice?
Only the courts (or an official empowered by a court) can consent to treatment on
behalf of an incapacitated adult. This does not mean, however, that incapacitated adults should be denied necessary medical treatment. Treatment can – and should – be given if the patient’s doctors, in consultation with the patient’s relatives and carers, conclude that it is in the patient’s best interests (see Box 3). The focus should be on what the patient would consider to be in his/her best interests, not what the doctor would want done if he were in the same position. Any intervention should be the minimum necessary to safeguard the patient’s wellbeing.
Box 3: When a patient is incapacitated
“Where an adult patient is deemed to lack capacity to make a healthcare decision, you should take reasonable steps to find out whether any other person has legal authority to make decisions on the patient’s behalf [see editor’s note below]. If so, you should seek that person’s consent to the proposed treatment.
“If no other person has legal authority to make decisions on the patient’s behalf, you will have to decide what action to take. In doing so, you should consider:
- which treatment option would provide the best clinical benefit for the patient,
- the patient’s past and present wishes if they are known,
- whether the patient’s capacity is likely to increase,
- the views of other people close to the patient who may be familiar with the patient’s preferences, beliefs and values, and
- the views of other health professionals involved in the patient’s care.
Source: Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009)
Editor’s note: This would only be if the patient has been made a Ward of Court, in which case you must obtain written consent from the case officer assigned to the Ward. If the proposed treatment is particularly intrusive or carries significant risks, the case officer may refer the matter to the court.