It is common knowledge in the UK that patients have a right to accept or refuse medical treatment, placing an obligation upon healthcare professionals to obtain their patients' consent prior to undertaking any tests or procedures, but the validity of consent will be nullified if certain essential elements of the consent process are not present. This can have obvious implications for those who have suffered injuries as a result of treatment and may be considering pursuing a claim for clinical negligence.
How is informed consent obtained?
Consent need not be in writing, and for minor tests and procedures of a straightforward nature, verbal consent would typically be given following an explanation by a healthcare professional about the procedure and the reasons for it. Alternatively, you may imply your consent through your actions, e.g. attending your GP with some form of sickness implies that you wish to be treated for it.
For a more significant procedure, such as an operation in hospital, you would be asked to sign a consent form prior to the procedure being undertaken. A signed consent form will not constitute valid consent unless certain obligations have been met by the healthcare provider to ensure, that when consent is obtained, the patient has given their “informed consent”.
To do this, the patient must be fully advised about the need for the procedure, what it involves and any potential risks, side effects and possible outcomes. There may be alternative treatments or approaches to treatment, which the patient may prefer or may be in the patients' interests to have instead, which must be discussed with the patient. Additionally, the implications of refusing treatment must also be discussed.
The aim is to ensure that when a patient does give their consent, they do so from a position of fully understanding all of their potential choices and consequences.
Notably, in Montgomery v Lanarkshire Health Board (2015) the patient was not fully informed regarding the risks and alternatives to a vaginal delivery for her child, who sadly suffered a severe and catastrophic hypoxic brain injury as a result.
A second essential element of informed consent is giving the patient sufficient time to fully reflect upon the information they have been given, so that when/if they do consent to treatment, they can be satisfied it is the right decision for them. It is unacceptable for medical professionals to rush or coerce patients into making a decision. Indeed, a person would not agree to buy a house or car without taking the time to consider their options – why would choosing whether to have surgery be any different?
Who can and cannot consent to treatment?
The vast majority of patients are able to make decisions regarding their own health and medical treatment.
However, there are situations where a patient is unable to give consent, such as when the patient does not have mental capacity. Consent is then typically given by a family member, or someone who holds Lasting Power of Attorney for them. For certain mental health conditions, treatment can be given without a patient's consent.
Similarly, when consent is required for a child to undergo treatment, discussions surrounding treatment will be had with those who have parental responsibility so that they are fully informed about the treatment options, before being asked to provide consent on behalf of their child.
A child under 16 may wish to undertake treatment without their parent's knowledge or against their wishes, but this is only possible if the child is of sufficient age and maturity; has full comprehension of proposed treatments; and is therefore considered legally able to consent to treatment (so-called Gillick-competency).
Finally, there are emergency situations where a patient may be too ill to give their consent to treatment and in such a situation healthcare professionals are able to provide treatment under the doctrine of best interests or to save/preserve life.
Healthcare professionals have a professional and ethical duty to ensure their patient always consents to treatment from a fully informed perspective. If the approach to the consenting process is not scrupulous, the ability of patients to make logical decisions about their treatment can be significantly impaired, with potentially life-changing consequences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.