Patient autonomy is protected by consent law, and providing care or treatment while failing to respect the patient’s wishes is both unethical and illegal.
For the patient’s wishes to be respected, consent must be given. However, consent is only valid if it meets certain parameters.
In order for consent to be considered valid and legal, the patient should be
- in possession of sufficient information, and
- able to give consent freely.
The patient’s competence is their capacity to understand. They should be able to understand, retain, and weigh up the balance of information relevant to decisions about their own healthcare. They must also be able to communicate their decision. A patient unable to do so with a complex decision may not lack capacity, and may be able to consent with simpler proposals. It should be assumed that patients possess full capacity until proven otherwise.
The patient must also have sufficient information before making their decision. The minimum information at a patient’s disposal should include an explanation of the procedure, the probability of success, and any potential harmful effects. The patient should also have an opportunity to ask questions.
Giving Consent Freely
Pressuring a patient into consenting will invalidate the consent, and patients should always be afforded a reasonable amount of time to consider their options before proceeding. Doctors should also be aware of how much a patient’s friends and family can influence their decision when giving them time to consider.
Verbal consent is nearly always considered just as valid as written consent because it is considered a process, and not just a signature. However, some procedures are legal only if written consent is obtained – procedures regarding IVF, for example. A consent form only proves that consent was obtained, but not that it is valid. Crucially, the information provided to the patient should be documented in the medical record – highlighting the nature of the procedure in question, the risks, benefits, and alternatives, as well as anything else of note raised by the patient.
Patients Lacking Capacity
Those lacking capacity should still be entitled to necessary treatment even if they lack the ability to consent to it. Proxy decision-makers are available for children and adults lacking capacity. In the absence of a proxy, or sufficient time to find one, necessity justifies treating a patient without consent – provided that every decision is taken with the patient’s best interests in mind.
Court and Consent
Some medical cases may require the intervention of the court – usually those described as involving ‘serious medical treatment’ involving the following decisions:
- withholding or withdrawing nutritional support from patients in a vegetative state or with minimal consciousness,
- non-therapeutic sterilisation of a patient unable to consent, and
- organ or bone marrow donation by those lacking capacity.
Other treatments are classified as ‘serious medical treatment’, but are dependent on the circumstances and the patient’s condition.
Failure to Obtain Valid Consent
Failing to get valid consent, but continuing with a procedure in spite of this, could lead to criminal negligence claims. This is because, at least in theory, the patient has suffered without consenting to the procedure which caused the suffering. However, successful claims are extremely rare. The GMC advises all doctors to follow its guidelines, with failure to do so potentially leading to action by the GMC regarding a doctor’s registration.