Essential guide to consent

The GMC’s guidance on consent – Consent: patients and doctors making decisions together – is the most important document for GPs. Here is a breakdown of the contents

Why obtain consent?

It is not only good practice to be familiar with consent guidance, but the GMC will judge your practice against it, which could have a bearing on your future career. Even the briefest physical examination cannot be performed without consent. No-one has the right to touch anyone else without lawful excuse and if doctors do so it may well undermine patients’ trust. If consent is not obtained, a clinical negligence claim, a complaint or even civil or criminal proceedings for assault could follow.

Respect for patients’ autonomy is expressed in consent law; to impose care or treatment on people without respecting their wishes and right to self-determination is not only unethical, but illegal.

What is consent?

Consent must be freely given by a competent patient voluntarily making an informed decision. Consent is about more than a single decision; rather it is a process to inform the patient of the nature and purpose of their condition and its treatment. 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.

Who should take consent?

If you are providing treatment, it is your responsibility to obtain consent. If you are asked to get consent for a particular treatment you should only do so if you are competent.

Who can give consent?

Patients under the age of 16 may or may not have the capacity to consent to treatment. The test of capacity in children is still whether or not they are Gillick competent. If they are able to understand information about their condition and the implications of either, proceeding with the treatment, or doing nothing, they should be considered competent to provide consent. The capacity to consent depends more on a young person’s ability to understand and weigh up options, than on age. When assessing a young person’s capacity to consent, you should bear in mind:

• At 16 a young person can be presumed to have the capacity to consent. 
• A young person under 16 may have the capacity to consent, depending on their maturity and ability to understand what is involved.

If the child or young person withholds consent or is lacking capacity, someone with parental responsibility can consent on their behalf. In cases where a child is likely to be adversely affected, a parent’s refusal to consent in these circumstances can be overruled by the courts.

How should consent be given?

According to the GMC, you must give patients the information they need about: 

1. The diagnosis and prognosis 
2. Any uncertainties, including options for further investigations 
3. Options for treating and managing the condition, including the option not to treat 
4. The purpose of proposed treatments and what they will involve 
5. The potentials risks, burdens and likelihood of success of each option 
6. Whether a treatment is experimental 
7. Who is responsible for the treatment and the seniority of those involved, to what extent students will be involved 
8. Their right to refuse to take part in research or teaching 
9. Their right to seek a second opinion 
10. Any bills they will have to pay 
11. Any conflicts of interest that you may have 
12. Information on any better treatments than the ones offered by you or your organisation.

The exchange of information will vary depending on each patient’s experience, but no assumptions should be made about the sort of information they might need. Opportunities should be made available for asking questions, and efforts made to listen to the patient’s concerns and views. You should check whether the patient has understood the information and make it clear that they can change their mind about a decision at any time.

What if a patient cannot consent?

Both legislation and the GMC’s guidance emphasise that doctors should presume 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 a person’s capacity should relate to a specific decision.

England and Wales, Northern Ireland and Scotland all have different ways of assessing an individual’s capacity (see MPS Guide to Consent for more details), but underlining all three is that a person’s capacity, or lack of it, cannot be judged simply on the basis of age, appearance, condition or any aspect of their behaviour. Even if a patient lacks capacity, the onus upon health professionals is still to involve patients insofar as is possible in decisions that affect their lives.

Useful links

• Department of Health, Reference guide to consent for examination or treatment, second edition (2009) 
• DCA, Mental Capacity Act 2005: Code of Practice (2007) www.dca.gov.uk 
• Adults with Incapacity (Scotland) Act 2000: Code of Practice (2002) www.scotland.gov.uk 
• GMC, 0-18 Years: Guidance for all Doctors (2007) 
• GMC, Consent: Patients and Doctors Making Decisions Together (2008).