A practitioner must have a full understanding of the procedure or treatment, how it is carried out and the risks associated with it when obtaining consent from a patient.
It is the responsibility of the practitioner to ensure that a patient has been given sufficient time and information to make an informed decision about the treatment or investigation proposed including the prescription of medication
Obtaining informed consent requires practitioners to keep their patients up-to-date with any changes in their condition and the treatment or investigation proposed.
Ordinarily, adults are presumed to have the capacity to make decisions about their own medical treatment.
The veracity of the tests in relation to a patient’s cognitive ability and whether or not it has been impaired to such an extent that he or she is incapable of making a decision to refuse the proffered treatment is guided by the following principles:
- That the patient has not comprehended and retained the treatment information and, in particular, has not assimilated the information as to the consequences likely to ensue from not accepting the treatment;
- The patient does not believe the treatment information and, in particular, if it is the case that not accepting the treatment is likely to result in the patient’s death, does not believe the outcome is likely; and
- The patient has not weighed the treatment information, in particular the alternative choices and the likely outcomes in the balance in arriving at their decision.
A patient who is aged under 16 years and who seeks to make a healthcare decision on their own behalf should be encouraged to involve his or her parents in the decision, bearing in mind the paramount responsibility to act in the patient’s best interests. The circumstance in which a minor may be considered to have capacity to consent to medical is legally uncertain.
Patients aged 16 years and over are entitled by law to give their own consent to surgical medical or dental treatment.
A refusal of treatment by a patient between 16 and 18 years which is against medical advice and parental wishes is of uncertain legal validity. Consideration should be given to seeking legal advice if this situation arises.
Any discussions with patients about the risks and benefits of a proposed procedure or treatment should be documented in the medical record.
Information leaflets are not a substitute for detailed discussion. If leaflets are given to augment discussion with a patient this fact should be documented in the patient’s notes.
Medical Council Guidelines
The Medical Council, within their Guide to Professional Conduct and Ethics for Registered Medical Practitioners, provides general guiding principles in relation to capacity to consent.
The Guide states that “every adult patient is presumed to have the capacity to make decisions about their own healthcare. As their doctor, you have a duty to help your patients to make decisions for themselves by giving them information in a clear and comprehensible manner and by ensuring that they have appropriate help and support. The patient is also entitled to be accompanied during any such discussion by an advocate of their own choice.”
There are instances where a person’s consent can be affected by infirmity. In this regard, the Medical Council advises that a functional approach should be taken, when considering the capacity requirements in such an instance. The criterion in assessing the relevant choice depends on the following:
- The patient’s level of understanding and retention of the information they have been given.
- Their ability to apply the information to their own personal circumstances and come to a
The considerations for a clinician to take if the patient has no other person with legal authority to make decisions on their behalf are the following, as per Medical Council Guidelines:
- Which treatment option would provide the best clinical benefit for the patient?
- The patient’s past and previous wishes if they are known.
- Whether the patient’s capacity is likely to increase.
- The views of other people close to the patient who may be familiar with the patient’s preferences, beliefs and values.
- The views of other health professionals involved in the patient’s care
Consent and Minors
The Medical Council Guide states;
18 Children and young people
18.1 When treating children and young people, your primary duty is to act in their best interests.You should involve them as much as possible in discussions about their healthcare, give them information suitable for their age, listen to their views and treat them with respect.
18.2 By law, patients aged 16 years and over are entitled to give consent to surgical, medical or dental treatment. Patients over 18 years are entitled to give consent to psychiatric treatment, organ or tissue donation, or participation in medical research. The law relating to refusal of treatment by young people aged 16 and 17, against medical advice and parental wishes, is uncertain. If this situation arises, you should consider getting legal advice before acting on the decision.
18.3 Where the patient is under the age of 16 years, the parent(s) or guardian(s) will usually be asked to give their consent to medical treatment on the patient’s behalf.
18.4 When patients under 16 want to make a healthcare decision without the knowledge or consent of their parent(s) or guardian(s), you should encourage them to involve their parent(s) or guardian(s) in the decision.
18.5 If a young person8 refuses to involve a parent/guardian, you should consider the youngperson’s rights and best interests, taking into account:
- the young person’s maturity and ability to understand the information relevant to the decision and to appreciate its potential consequences
- whether the young person’s views are stable and reflect their core values and beliefs
- whether the young person’s physical or mental health, or any other factors are affecting their ability to exercise independent judgement
- the nature, purpose and usefulness of the treatment or social care intervention
- the risks and benefits involved in the treatment or social care intervention
- any other specific welfare, protection or public health considerations, covered by relevant guidance and protocols such as the 2011 Children First: National Guidelines for the Protection and Welfare of Children (or any equivalent replacement document). Where this is the case, the relevant guidance or protocols must be followed.
18.6 This assessment of maturity should be made for all young people under 16, including those who have been diagnosed with an intellectual disability.
18.7 You should provide treatment for young people without informing their parent(s) or guardian(s) if, having considered the factors in paragraph 18.5, you consider that it is in the patient’s best interests to do so and the patient has sufficient maturity and understanding to make the decision.
18.8 Children and young people have a right to confidential medical treatment as set out in paragraph 29. However, parents and guardians also have a legal right to access medical records of their children until they are 18.9 You should tell children and young people that you cannot give an absolute guarantee of confidentiality.
Members are referred to the full guidelines on consent to medical treatment which are included in the Guide to Professional Conduct and Ethics 2016 (8th Edition) published by the Medical Council.1