Consent - The basics

The principles of consent

A lack of consent could even lead to a criminal prosecution for battery

Failure to take consent properly can lead to both legal and disciplinary problems.

Rarely, a lack of consent could even lead to a criminal prosecution for battery (contact with an individual without consent). Consent is valid only for the procedure outlined to the patient.

Consent can sometimes be implied by the fact that the patient has come to the doctor for medical care, eg, when a doctor says that they need to take a patient’s blood pressure, the patient will hold out their arm.

In an emergency situation where a patient cannot provide consent, eg, the patient is unconscious, a doctor may provide treatment to safeguard the patient’s life or health, acting in the patient’s best interests. This has to be as a matter of urgency rather than one of convenience.

Communicating risk

It is important to warn patients of the risks of treatment and document that you have done so. In Chester v Afshar (2004), the surgeon did not document that Miss Chester had been warned of the possibility of cauda equina syndrome as a result of having a discectomy to treat her low back pain. There was dispute over the conversation; it could not be proven that Miss Chester had been warned of all the risks.

She argued that if she had been warned, she would have taken the time to think about it and had surgery on another day, possibly by another surgeon, thus avoiding the complication.

Patients who do not want to know

You must still give [patients] the information they need in order to give their consent

Some patients may not want to know all the details about treatments and their attendant risks and benefits, making it difficult to secure their valid consent.

If a patient does not want to know in detail about their condition or the treatment, you should respect their wishes as far as possible, but the GMC says “you must still give them the information they need in order to give their consent”.

You must record the fact that the patient has declined information.

Consent – what should patients be told?

The GMC advises that patients should be told: 

• Details of the diagnosis, and prognosis, and the likely prognosis if the condition is left untreated.
• Uncertainties about the diagnosis, including options for further investigation prior to treatment.
• Options for treatment or management of the condition, including the option not to treat.
• The purpose of a proposed investigation or treatment; details of the procedures or therapies involved.
• For each option, explanations of the likely benefits and the probabilities of success; and discussion of any serious or frequently occurring risks.
• Advice about whether a proposed treatment is experimental.
• How and when the patient’s condition and any side effects will be monitored or reassessed.
• A reminder that patients can change their minds about a decision at any time.
• A reminder that patients have a right to seek a second opinion.

For the full checklist, see the GMC’s Consent: Patients and Doctors Making Decisions Together (2008).