Author: Khurram Rasool / Editor: Liz Herrievan / Codes: / Published: 08/04/2025
In a healthcare setup, the challenge of deciding whether to obtain consent or proceed in the patients best interest is a frequent occurrence. Consent is a cornerstone of medical ethics and legal practice. Simply put, it means “permission.” Every patient has the right to be involved in decisions about their treatment and care. Informed consent ensures that patients have all the necessary information to make free and informed decisions about their medical care.
What is Informed Consent?
Informed consent is more than just a signature and few tick marks on a paper. It ensures a persons dignity and autonomy. It involves a clear understanding of the facts, implications, and consequences of a medical intervention. Healthcare professionals must ensure that patients are fully informed about any intervention, whether it is a treatment, research, or the disclosure of personal information. Without adequate information or if the patient’s understanding is impaired, the consent process is invalid. In England and Wales, the Mental Capacity Act 2005 says that anyone aged 16 and over is assumed to have capacity and can give their consent. In Scotland, the legal age of capacity is also 16.
Types of Consent
Broadly speaking, consent can be categorised as verbal or written. For minor interventions, such as a clinical examination, verbal consent is usually sufficient. However, more complex procedures, like using patients data for research or performing surgery, require written consent. Remember, if it is not documented, it did not happen. Always document the patient’s decision in their notes.
Components of Informed Consent
Before obtaining consent, a dialogue is required about the diagnosis, how it was determined, treatment options, and the risks and benefits of each option. Be honest with patients, even if the information is uncomfortable. Discuss uncertainties and the chances of success and failure. Answer questions honestly and acknowledge the limits of your knowledge. It is okay to say, “I’m not sure, but I will find out.”
What is Implied Consent?
When someone gives their permission without explicitly saying it, the consent is said to have been implied by their behaviour, the setting, or even by their silence or inactivity. This idea is frequently applied in a variety of legal and medical contexts. For example, consent is presumed when a patient volunteers their wrist for a pulse check or enters a clinic for a blood pressure check.
Can a patient make unwise decisions?
It is the patients right to decide whether to accept or decline any intervention related to their health or body, regardless of how it may appear. The role of a healthcare professional is to provide comprehensive information to assist the patient in making an informed decision and to ensure that the patient is fully competent in understanding and evaluating the facts.
Decision-Making Process
Decision-making in healthcare is an ongoing dialogue. It is crucial to use clinical knowledge and judgment to act in the patient’s best interest. For example, in an emergency, the GMC says if a patient is unconscious and its not possible to find out their wishes, you can provide treatment that is immediately necessary to save their life or to prevent a serious deterioration of their condition. If there is more than one option, the treatment you provide should be the least restrictive of the patients rights and freedoms, including their future choices. Always consider the severity of the intervention, available alternatives, and the impact on the patient’s personal circumstances. On the other hand, when a patient has the capacity to understand, retain, weigh, and communicate their decisions, they have the right to make informed choices about their own healthcare. This principle is fundamental to respecting patient autonomy and ensuring ethical medical practice.
Providing Information
Give patients clear, accurate, and up-to-date information based on the best available evidence. Tailor the discussion to each patient, focusing on what matters to them. Use categories like quite common, common, and uncommon to describe risks. Numerical descriptions can help patients understand and retain information better. For example, when discussing anaesthesia risks, explain the likelihood in numerical terms. Quite common risks might affect 1 in 10 people, common risks 1 in 10 to 1 in 100, and rare risks 1 in 1000. Use relatable examples, such as “one person in a family” for quite common risks, “one person on a street” for common risks, and “one person in a village” for rare risks.
What information should be communicated?
- Diagnosis and Prognosis: Provide comprehensive details about the diagnosis, prognosis, and potential outcomes if left untreated.
- Uncertainties: Discuss any uncertainties regarding the diagnosis and options for further investigation before treatment.
- Treatment Options: Explain all available treatment or management options, including the choice to not undergo treatment.
- Purpose and Procedures: Clarify the purpose of proposed investigations or treatments, including detailed descriptions of procedures or therapies.
- Benefits and Risks: Outline the likely benefits, success probabilities, and any serious or common risks associated with each option.
- Experimental Treatments: Inform whether a proposed treatment is experimental.
- Monitoring and Reassessment: Describe how and when the patients condition and any side effects will be monitored or reassessed.
- Decision Flexibility: Remind patients they can change their decisions at any time.
- Second Opinion: Reinforce the patients right to seek a second opinion.
Capacity and Decision-Making
No one else can decide on behalf of an adult who has capacity. If a patient with capacity asks you or someone else to decide for them, explore why they might be refusing the conversation, offer reassurance or support, but reinforce that the decision is theirs alone. However, there is no objection to involving family members, friends, or next of kin in assisting the patient in reaching a final decision, provided the patient consents to their involvement.
What to do if a patient lacks capacity?
If a patient cannot understand, retain, use, or communicate information relevant to the decision, they may lack capacity. Communication doesnt have to be verbal, and you may need to consider reasonable adjustments such as easy-read information or communication aids. A High Court ruling says that we must first decide if a person can make the decision, with support if necessary, and then find out if they have an impairment or disturbance in the functioning of their mind or brain, which is responsible for the inability to make the decision. If this is the case, we may have to make a best interests decision.
Healthcare professionals must be aware of key legislation and case law regarding Best Interests. If you are the responsible doctor, take steps to determine:
- Whether there is evidence of the patient’s previously expressed values and preferences, such as an advance directive or decision.
- Whether someone else has the legal authority to make decisions on the patient’s behalf called a Lasting Power of Attorney or court-appointed Health and Welfare Deputy.
If no legally binding advance refusal of treatment exists and no one has legal authority, you must decide what would be of overall benefit to the patient. Any decision made in the best interests of a patient must be the least restrictive of the available options.
What to do in an emergency situation?
In emergencies, if you are unsure about the LPA status, involve your seniors and seek legal advice. Treat the patient in their best interest while confirming the LPA’s authorization for health decisions. Ensure you have a photocopy of the legal documents for consultation and records. In non-emergency situations, discuss with the legal team in your trust.
Can a next of kin (NOK) make decisions?
Check if the patient has authorized someone with a Lasting Power of Attorney (LPA) to make decisions on their behalf. An LPA allows a trusted person to make decisions about health and welfare, or finances and property, depending on the type of LPA, if the patient becomes unable to do so. A court-appointed deputyship is similar, but, as the name suggests, the deputy has been appointed by a court. There are limitations to an LPA, such as not being able to refuse basic nursing care or life-saving treatment unless explicitly stated.
Consult with those close to the patient and other healthcare team members to understand the patient’s wishes. Aim to reach an agreement that respects the patient’s values and preferences. While the opinion of the next of kin (NOK) is important, they cannot make decisions on the patient’s behalf, without an appropriate LPA or Deputyship. If disagreements persist, seek legal advice, and consider applying to a court or statutory body for an independent ruling.
Consent for Minors
Individuals under eighteen are considered children. Effective communication with young people is essential for safe care. Assess whether a young person can understand the nature, purpose, and consequences of treatments. Young people aged 16-17 are presumed to have the capacity to consent like adults. However, if they refuse a treatment, this can be overridden either by someone with parental responsibility or the courts.
Younger children may also have capacity, known as “Gillick competence,” depending on their maturity and understanding. If a child is not mature enough to make informed decision about their health, seek parental consent, usually from one parent. If parents disagree, seek legal advice. Encourage young people to involve their parents in decisions and maintain confidentiality as you would with adults. If a young person refuses treatment, weigh the harm of overriding their refusal against the benefits of treatment. Involve the multidisciplinary team, an independent advocate, or a designated doctor for child protection, and seek legal advice if necessary.
Parental responsibility
A mother automatically has parental responsibility for her child from birth, or the time of adoption.
A father usually has parental responsibility if hes either:
- married to the childs mother (or was at the time of birth or adoption)
- listed on the birth certificate
- has a parental responsibility agreement with the mother
Same-sex partners will both have parental responsibility if they were civil partners at the time of the treatment, e.g. donor insemination or fertility treatment.
In England and Wales, a second parent (mother or father) may be granted a parental responsibility order by the courts, but no more than two people may have parental responsibility for an individual child.
In Scotland, a father has parental responsibility if hes married to the mother when the child is conceived, or marries her at any point afterwards, or if he is named on the birth certificate.
In Northern Ireland, a father has parental responsibility if hes married to the mother at the time of the childs birth. If a father marries the mother after the childs birth, he has parental responsibility if he lives in Northern Ireland at the time of the marriage.
If a child is born overseas and comes to live in the UK, parental responsibility depends on the UK country theyre now living in.
Conclusion
Informed consent is a fundamental aspect of patient care. It ensures that patients are active participants in their healthcare decisions. By providing clear, honest, and tailored information, healthcare professionals can uphold the ethical and legal standards of informed consent.
Further Reading
Here are some valuable resources for understanding informed consent in the UK for doctors:
- Montgomery and informed consent: where are we now? – This article from The BMJ discusses the implications of the landmark Montgomery case on informed consent and its impact on clinical and medicolegal practice.1
- Consent and refusal by adults with decision-making capacity: A toolkit for doctors – Provided by the British Medical Association (BMA), this toolkit offers practical guidance on the consent process, including key questions about consent, capacity to consent, and sharing information with patients.2
- Guidance for doctors on patient consent – This resource from the BMA includes links to other guidance and resources from the General Medical Council (GMC) and health departments.3
- Understanding informed consent in medicines-related conversations – This article provides an update on changes in law and guidance from the GMC, helping medical practitioners navigate informed consent in medical practice.4
- Decision making and consent – The GMCs guidance document outlines the principles of good medical practice in decision-making and consent, emphasizing the importance of keeping up to date with relevant laws and regulations.5