Consent

Practice Leads

  • Doctors: Ramesh Mehay & Pardip Sandhu
  • Admin: Chris Rushton

Date Reviewed

11th Aug 2016

Date of Next Review

September 2017

Introduction

Patients have a fundamental legal and ethical right to determine what happens to their own bodies. Valid consent to treatment is therefore absolutely central in all forms of healthcare, from providing personal care to undertaking major surgery. Seeking consent is also a matter of common courtesy between health professionals and patients.

This policy focuses on providing a robust system that ensures that valid consent is appropriately and effectively sought when required for all contacts with patients and for the use of any patient confidential information as and when routinely requested in clinical practice.

And this policy applies to all staff who should familiarise themselves with it.  Failure to comply with the policy could potentially lead to disciplinary action.

Five key principles underpinning the Mental Health Act

  1. A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
  2. The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
  3. That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
  4. Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
  5. Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms

What is consent?

“Consent” is a patient’s agreement for a health professional to provide care. Patients may indicate consent non-verbally (for example by presenting their arm  for their pulse to be taken), orally, or in writing. For the consent to be valid, the patient must:

  • be competent to take the particular decision;
  • have received sufficient information to take it; and
  • not be acting under duress.

The context of consent can take many different forms, ranging from the active request by a patient for a particular treatment (which may or may not be appropriate or available) to the passive acceptance of a health professional’s advice. In some cases, the health professional will suggest a particular form of treatment or investigation and after discussion the patient may agree to accept it.  In these cases, ‘seeking consent’ is better described as ‘joint decision- making’: the patient and health professional need to come to an agreement on the best way forward, based on the patient’s values and preferences and the health professional’s clinical knowledge.

If a patient has the mental capacity, they can either

  1.  consent to treatment
  2.  refuse treatment

What consent is and isn't

Consent is often wrongly equated with a patient’s signature on a consent form. A signature on a form is evidence that the patient has given consent, but is not proof of valid consent. If a patient is rushed into signing a form, on the basis of too little information, the consent may not be valid, despite the signature.

In some cases, a patient can make a decision to consent straight away (like the taking of a blood sample, allowing the physio to work on them).  In other cases, patients need time to make a decision.  Try and allow for this - you may need to meet several times for further discussions.

If a patient has given valid verbal consent, the fact that they are physically unable to sign the form is no bar to treatment. Patients may, if they wish, withdraw consent after they have signed a form: the signature is evidence of the process of consent-giving, not a binding contract.  Health professionals must take into consideration whether the patient has had sufficient chance to absorb the information necessary for them to make their decision.

A patient can only consent if they have the mental capacity to do so.

All patients will be assumed to have capacity. An assessment must take place where capacity is in doubt.  Where an adult patient lacks the mental capacity (either temporarily or permanently) to give or withhold consent for themselves, no-one else can give consent on their behalf. However, treatment may be given if it is in their best interests, as long as it has not been refused in advance in a valid and applicable advance directive.

How to assess capacity: the functional test of capacity

Basically answer the following 4 questions..

  1. Can the patient understand the information relevant to the decision?
  2. Do you consider the patient to be able to retain the information relevant to the decision?
  3. Is the patient able to use or weigh up the pros and cons to make a decision?
  4. Is the patient able to communicate their decision?

 

Can children give consent for themselves?

  • Before examining, treating or caring for a child, you must also seek consent.
  • Young people aged 16 and 17 are presumed to have the competence to give consent for themselves.
  • Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved).
  • In other cases, someone with parental responsibility must give consent on the child’s behalf, unless they cannot be reached in an emergency.
  • If a competent child consents to treatment, a parent cannot override that consent.
  • Legally, a parent CAN consent if a competent child refuses, but it is likely that taking such a serious step will be rare.

When a patient lacks capacity to consent

  • Document why you feel the patient lacks capacity in the medical notes.
  • Be careful if the patient has communication difficulties.  A difficulty to communicate DOES NOT automatically mean that the patient cannot consent!
  • Individuals have a right to the support of an Independent Mental Capacity Advocate (IMCA). An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.  Get the IMCA involved.
  • Occasionally, there will not be a consensus on whether a particular treatment is in an incapacitated adult’s best interests. Where the consequences of having, or not having, the treatment is potentially serious, a court declaration may be sought. In this type of case, the Clinical Risk Manager should be contacted directly to arrange the necessary legal advice and support

Do I need to seek written consent?

It is rarely a legal requirement to seek written consent, but it is good practice todo so if any of the following circumstances apply:

  • the treatment or procedure is complex, or involves significant risks (the term ‘risk’ is used throughout to refer to any adverse outcome, including those which some health professionals would describe as ‘side-effects’ or ‘complications’)
  • the procedure involves general/regional anaesthesia or sedation
  • providing clinical care is not the primary purpose of the procedure
  • there may be significant consequences for the patient’s employment, social or personal life
  • the treatment is part of a project or programme of research approved by BACHS
  • child hood immunisation
  • private circumcision work where male circumcision only remains lawful if both parents consent.

What if it is an emergency?

Rely on oral consent if they are awake and can communicate.  Still try to provide the right balance of information.  If the patient is unconscious and unable to communicate, do what you feel is in the best interests of the patient.  Record it in the notes.

What if the patient is illiterate?

Providing they have mental capacity, get them to make a mark instead of a signature and get it witness. If they can't make a mark for physical reasons, document thoroughly verbal consent.  If consent has been validly given, the lack of a completed form is no bar to treatment.

Low risk routine procedures do not require written consent

But they still need verbal consent.  An example of a low risk procedure is taking a blood test or attending to personal care.

 

What if the patient has communication difficulties?

  • Be careful if the patient has communication difficulties.  A difficulty to communicate DOES NOT automatically mean that the patient cannot consent!
  • Find an alternative means of communication. Written rather than verbal for example.   Using pictorial materials etc.   Remember, many people can't read.   So, provide audiotapes rather than leaflets.
  • Involve appropriate colleagues - eg specialist learning disability teams, speech and language therapists.
  • Ultimately, the patient should be assisted to make and communicate their own decision

What if the patient's first language is not English

  • Consider using bi-lingual workers in the practice.
  • Better still, use the language line or get a language interpreter into a dedicated future consultation.
  • Be careful of using relatives - especially children - because they may not communicate things how you exactly want them to.
    • To discuss complex needs call Ghazala Kazmi on 01274 237618
    • Requests for an interpreter should be made to Liz Weatherill on 01274 237616.
    • If these numbers are unavailable please contact the main switchboard on 0845 1115000

Key points for minor surgery

  • Explanations
    • Explain the procedure, how long it will take, how they will feel afterward.
    • Explain what will happen after the procedure, how long recovery takes.
    • Explain the pros and cons of the procedure.  Try and quantify the risks.
    • Sometimes, patients don't want to know everything and put their faith in the health professional.  Where the patient makes clear (verbally or non-verbally) that they do not wish to be given this level of information, this should be documented.
  • Ask them: 'Do you have any concerns or fears?'  Consent is not just about a yes/no answer - create true dialogue before you get there.
  • Take written consent.
  • On the day of the procedure, double check that the patient is still happy to go ahead and record in the notes (or take written consent if not already done so).
  • Remember, patients are allowed to change their minds - provide the space for them to do that.   For example, take consent way before the patient is prepared for treatment (eg before they gowned up or are placed on the minor surgery bed).
  • Also remember, the health professional carrying out the procedure is ultimately  ultimately responsible for ensuring that the patient is genuinely consenting to what is being done: it is they who will be held responsible in law if this is challenged later.  So, if you are doing the procedure, try and take the consent yourself.
  • Do not take consent on behalf of other health professionals if you feel out of your depth to do so.

Key points for patients with Dementia

  • Don't automatically assume all patients with Dementia lack capacity to consent.
  • Patients with Dementia vary through out the day in terms of their mental clarity/confusion.
  • Try and speak to patients with dementia when they are most likely to be at their mental best - for example: during the day rather than at night time, when the room is not crowded with people, in the presence of someone they know and trust.
  • Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

The person who refuses treatment

  • Everyone has their own values, beliefs, preferences and attitude to risk, which may not be the same as those of other people. So, even if a person makes a decision which others, including their family and friends, regard as unwise, unusual or irrational, this does not necessarily mean that the person lacks capacity to make that decision.
  • If after discussing all possible options, the patient still refuses and has mental capacity, then accept their decision and record it thoroughly in the notes.
  • Make sure they understand the pros and cons of their decision.
  • You should also ensure that the patient realises they are free to change their mind and accept treatment if they later wish to do so. Where delay may affect their treatment choices, they should be advised accordingly.
  • If a patient consents to a particular procedure but refuses certain aspects of the intervention, you must explain to the patient the possible consequences of their partial refusal. If you genuinely believe that the procedure cannot be safely carried out under the patient’s stipulated conditions, you are not obliged to perform it. You must, however, continue to provide any other appropriate care.

Further Notes