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It is common knowledge in the United Kingdom that patients have the right to accept or refuse medical treatment, imposing on healthcare professionals the obligation to obtain the consent of their patients before undertaking any tests or procedures, but the validity of the consent will be invalidated if certain essential conditions elements of the consent process are not present. This may have obvious implications for those who have suffered injuries as a result of treatment and who may be considering bringing claims of clinical negligence.
How is informed consent obtained?
Consent does not need to be written, and for minor tests and procedures of a simple nature, verbal consent would usually be given after an explanation by a medical professional about the procedure and the reasons for it. Alternatively, you can imply your consent by your actions, for example seeing your GP for some form of illness implies that you wish to be treated for it.
For a larger procedure, such as an operation in the hospital, you would be asked to sign a consent form before the procedure is undertaken. A signed consent form will not constitute valid consent unless certain obligations have been met by the health care provider to ensure that when consent is obtained, the patient has given “informed consent”.
To do this, the patient must be fully informed of the need for the procedure, what it involves, and the potential risks, side effects, and possible outcomes. There may be alternative treatments or treatment approaches, which the patient may prefer or may be in the patient’s best interest to have instead, which should be discussed with the patient. Additionally, the implications of refusing treatment should also be discussed.
The goal is to ensure that when a patient gives consent, they do so in a position where they fully understand all of their potential choices and consequences.
In particular, in Montgomery v Lanarkshire Board of Health (2015) the patient was not fully informed of the risks and alternatives to vaginal delivery for her child, who unfortunately suffered severe and catastrophic hypoxic brain injury as a result.
A second essential element of informed consent is giving the patient enough time to fully consider the information given to them, so that when they consent to the treatment, they can be confident that it is the right decision for them. It is unacceptable for healthcare professionals to rush or coerce patients into making a decision. Indeed, a person would not agree to buy a house or a car without taking the time to think about their options – why should choosing to have surgery be any different?
Who can and cannot consent to processing?
The vast majority of patients are able to make decisions about their own health and medical treatment.
However, there are situations where a patient is incapable of giving consent, such as when he lacks mental capacity. Consent is then usually given by a family member or someone who holds a continuing power of attorney for them. For some mental health conditions, treatment can be given without the patient’s consent.
Similarly, when consent is required for a child to undergo treatment, discussions about the treatment will take place with the holders of parental authority so that they are fully informed of the treatment options, before being invited to give their consent on behalf of their child.
A child under the age of 16 may wish to undertake treatment without their parents’ knowledge or against their will, but this is only possible if they are old and mature enough; has a full understanding of the proposed treatments; and is therefore considered legally capable of consenting to the processing (so-called Gillick competence).
Finally, there are emergency situations where a patient may be too ill to consent to treatment and in such a situation healthcare professionals are able to provide treatment under the best interests doctrine or save/preserve life.
Healthcare professionals have a professional and ethical duty to ensure that their patient always gives informed consent to treatment. If the approach to the consent process is not scrupulous, patients’ ability to make logical decisions about their treatment can be significantly impaired, with life-threatening consequences.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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