Consent
Before performing even the briefest physical examination, you must always obtain consent; otherwise, you are vulnerable to a civil claim in negligence, or civil or criminal proceedings in assault. You can find a more detailed discussion of consent in the MPS Guide to Consent but, essentially, consent must fulfil three conditions to be legally valid. The patient must be:
- capable of giving consent
- sufficiently informed to make a considered decision
- giving consent voluntarily.
A patient may give express or implied consent to a procedure. In many circumstances, implied consent is sufficient – eg, if the atient undresses for an examination – but in other cases, it is important to obtain express written consent (see the GMC guidance in box 2).
Be sure to allow the patient enough time to consider your advice and to reach a decision: failure to do so may result in a finding of negligence, even when the procedure is performed competently. Box 3 lists other points to be aware of.
Box 2: GMC guidance on express consent
“In cases that involve higher risk, it is important that you get the patient’s written consent. This is so that everyone involved understands what was explained and agreed. By law you must get written consent for certain treatments, such as fertility treatment and organ donation. You must follow the laws and codes of practice that govern these situations.
“You should also get written consent from a patient if:
- the investigation or treatment is complex or involves significant risks
- there may be significant consequences for the patient’s employment, or social or personal life
- providing clinical care is not the primary purpose of the investigation or treatment
- the treatment is part of a research programme or is an innovative treatment designed specifically for their benefit.
“If it is not possible to get written consent, for example, in an emergency or if the patient needs the treatment to relieve serious pain or distress, you can rely on oral consent. But you must still give the patient the information they want or need to make a decision. You must record the fact that they have given consent, in their medical records.
“You must use the patient’s medical records or a consent form to record the key elements of your discussion with the patient. This should include the information you discussed, any specific requests by the patient, any written, visual or audio information given to the patient, and details of any decisions that were made.”
(GMC, Consent: Patients and Doctors Making Decisions Together (2008) paras 47-51)
Box 3: 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 (involving the anaesthetist if possible) and risks associated with the procedure itself, especially if they might affect the patient’s decision to proceed.
- Discuss a rocedure with a patient only if you are sufficiently knowledgeable to answer their questions.
- 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.