When is it necessary to seek patient consent?
Patient consent is required on every occasion the doctor wishes to initiate an examination or treatment or any other intervention, except in emergencies or where the law prescribes otherwise (such as where compulsory treatment is authorised by mental health legislation). Consent may be explicit or implied.
Explicit or express consent is when a person actively agrees, either orally or in writing. Consent can also be implied, signalled by the behaviour of an informed patient.
Implied consent is not a lesser form of consent but it only has validity if the patient genuinely knows and understands what is being proposed.
The provision of sufficient accurate information is an essential part of seeking consent. Acquiescence when a patient does not know what the intervention entails, or is unaware that he or she can refuse, is not ‘consent’.
Consent is a process, not a one-off event, and it is important that there is continuing discussion to reflect the evolving nature of treatment.
Who should seek consent from a patient prior to an examination or treatment?
The BMA considers that the doctor who recommends that the patient should undergo the intervention should have responsibility for providing an explanation to the patient and obtaining his or her consent. In a hospital setting this will normally be the senior clinician. In exceptional circumstances the task of reaffirming consent (see below) can be delegated to a doctor who is suitably trained and qualified, is sufficiently familiar with the procedure and possesses the appropriate communication skills.
The GMC makes it clear that the doctor who is providing the treatment or undertaking the investigation will be responsible for ensuring, before starting any treatment or intervention, that the patient has given valid consent. (See also Card 1 list: ‘Consent’.)
Do certain examinations or procedures require written consent?
Generally there is no legal requirement to obtain written consent but in some cases it may be advisable. A consent form simply documents that some discussion about the procedure or investigation has taken place. The quality and clarity of the information given is the paramount consideration. Consent forms are evidence of a process, not the process itself. Any discussion, however, should be recorded in the patient’s medical notes. (See also Card 1 list: ‘Consent’, ‘DoH’, ‘MET’, ‘MDU’, ‘MPS’.)
Some bodies, including the Royal Colleges and the GMC, recommend that written consent is obtained for certain types of procedure. Doctors should familiarise themselves with guidance relevant to their area of practice. The Department of Health produces a series of model consent forms. These forms, and other information about consent, can be found on the Department of Health’s website. There are separate forms and procedures for consent to post-mortem examination.
For how long is consent valid?
Consent should be perceived as a continuing process rather than a one-off decision.
Where there has been a significant interval between the patient agreeing to a treatment option and its start, or if new information is available consent should be reaffirmed. In the intervening period, the patient may have changed his or her mind or there may have been clinical developments. It is therefore important that the patient is given continuing opportunities to ask further questions and to review the decision. (See also Card 1 list: ‘Consent’, ‘MET’, ‘MDU’, ‘MPS’, ‘DoH’.)
Can patients withdraw consent during a procedure?
Patients can change their minds about a decision at any time, as long as they have the capacity to do so.
Can a competent patient refuse treatment?
Competent adult patients are entitled to refuse consent to treatment (except where the law prescribes otherwise such as where compulsory treatment is authorised by mental health legislation), even when doing so may result in permanent physical injury or death. Therefore, for example, a Jehovah’s Witness can refuse a blood transfusion even where this is essential for survival.
Where the consequences of refusal are grave, it is important that patients understand this, and also that, for clinical reasons, refusal may limit future treatment options (see also Card 1 list: ‘Consent’, ‘DoH’, ‘MET’, ‘MDU’, ‘MPS’).
Doctors must respect a refusal of treatment if the patient is an adult who is competent, properly informed and is not being coerced.
Are doctors obliged to follow an advance decision?
Yes, if it complies with certain legal criteria – see Card 9 on advance decisions.
Card 2: General information