You will not ordinarily be given responsibility for seeking consent.
Understanding the legal and ethical importance of consent, and its link to the development of trust between doctors and patients is nevertheless essential. This card lays out the issues.
What is consent to treatment?
Consent from a patient signals informed agreement for the treatment or intervention to go ahead. The requirement to seek patient consent is therefore a strong expression of the moral obligation to respect patient autonomy. (See card two). It is also required by law.
On a practical level many of the most challenging ethical dilemmas faced by health professionals arise where there may be doubts about an individual’s ability to consent to treatment. In this card we look at consent in relation to adults who have the ability to make decisions. Subsequent cards look at consent in relation to children and at adults lacking capacity.
What the law says
"A doctor who operates without the consent of his patient, save in cases of emergency or mental disability, is guilty of the civil wrong of trespass to the person; he is also guilty of the criminal offence of assault."
The requirements for valid consent
In order for consent to be valid, several criteria have to be met.
- The individual giving consent has to have the mental capacity to be able to make the decision in question.
- Consent has to be given voluntarily – consent where an individual has been coerced into making the decision will not be valid.
- Sufficient information also has to be offered to enable the individual to understand the nature of the decision and its likely consequences, including the consequences of declining the treatment or intervention.
When is it necessary to seek consent?
Patient consent is required whenever a doctor wishes to examine or treat a patient. The only exceptions to this are some emergencies where it may be difficult to get consent or where treatment is being provided under mental health legislation. Consent can be explicit, given either orally or in writing, or implied, where it may be signalled by the behaviour of an informed patient.
Who should seek consent?
The doctor who recommends that the patient should undergo the intervention is ordinarily responsible for discussing the matter with the patient and seeking consent. In a hospital setting this is normally the senior clinician. Where this is not practical, consent can be delegated to a suitably trained and qualified health professional who is sufficiently familiar with the procedure.
For how long is consent valid?
Consent is a process rather than a one-off decision. Where there has been a significant interval between a patient agreeing to a treatment and its start, or if new information has emerged, or the patient’s condition has altered, consent should be reaffirmed.
Can competent patients refuse treatment?
Yes. Unless treatment is being provided under mental health legislation, competent adults can refuse treatments or investigations even where doing so will result in their permanent injury or death. This extends to pregnant women even if the decision results in the death of a viable foetus. All adults are presumed to be competent unless there is evidence to the contrary.
Food for thought
“The problem for all who care about others just is how to reconcile respect for the free choices of others with real concern for their welfare, when their choices are or appear to be self-destructive. Where, for example, someone wants to choose suicide or heroin addiction, what should those who care about and respect her do?”
John Harris. The Value of Life.
Is additional consent required for students to be present during consultations?
Yes. The doctor carrying out the consultation should explain to the patient that an observer or observers would like to sit in on the consultation, who they are and why they wish to observe.
Patients must feel able to refuse consent to the presence of students or other observers during their consultation, examination or treatment. They should be reassured that their decision will, in no way, affect their treatment. Wherever possible, patients should be given the option of considering the request prior to the arrival of the observers.
Is specific consent required to teach internal examination techniques on a patient who has been anaesthetised?
Yes. A patient who is anaesthetised has the same right to give and withhold consent as any other patient. Unless in an emergency, any medical procedure or intervention that would require consent from a competent patient would require consent from an anaesthetised patient. Before any anaesthetic is given, the specific consent of the patient should be obtained to additional practical procedures being carried out solely for teaching purposes.
What’s the moral problem
Should a decision by a twenty-year old Jehovah’s Witness to refuse life-sustaining blood products be respected? Competent adults are usually regarded as being the best judges of their own interests. This seldom causes problems for health professionals as most people understandably want what is best for their health. Ethical tensions can arise however where patients make choices that are clearly destructive of their health.
The obligation to promote an individual’s welfare can then come into conflict with the requirement to respect his or her autonomous decisions. This can feel particularly problematic when the beliefs driving the decision are not widely shared. Legally and ethically though the situation is clear: an informed and voluntary refusal of life-sustaining treatment by a competent adult must be respected. The only exception would be where the treatment is provided under mental health legislation.
- Ruth Faden et al. A history and theory of informed consent
Next card: Consent to treatment - adults who lack capacity