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General Points

•          The signing of a consent form is of secondary significance, but provides invaluable evidence that consent has been obtained.

•          Express Consent (i.e. written or oral) should be obtained for any procedure that carries a material risk (see below).

•          Consent could be obtained during the outpatient consultation and then again on admission.

Person obtaining Consent

•          Should, whenever possible,  be the person who will carry out the procedure.

•          If not, it should be obtained by someone who is appropriately qualified and familiar with all the details and risks of the proposed procedure.

Material Risks

•          Defined as those to which a reasonable person in the patient' position would be likely to attach significance.

•          Bolam test = A practitioner can expect to avoid liability if the court finds that a reasonably competent practitioner in a similar position would not have mentioned the risk, and that such a decision was supported by a responsible body of relevant professional opinion. 

•          Sidaway case -> In some cases a practitioner may reasonably omit to mention a material risk if, after proper consideration of the patient's condition, he believes that a warning would be harmful to the patient's health (Therapeutic Privilege).

•          The practitioner must be mindful of the severity and likelihood of the risk compared with the need for the procedure. It may be appropriate to warn of a relatively rare risk for a non-therapeutic procedure, such as sterilisation or a screening test. Whereas a similar risk for an important therapeutic procedure may not require specific warning because of the possibility of deterring a patient inappropriately from a necessary treatment.

•          Rogers v Whitaker (Court of Australia) -> A risk is material if a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it.

•          Finlay CJ, Irish courts -> 'If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general and which was approved of by his colleagues of similar specialisation's and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.'

Alterations & Abbreviations

No alterations should be made to the consent form after it has been signed by the patient.

No abbreviations should be used, especially for 'left' and 'right'.

Competent Adult

Criteria for a patient to make treatment decisions:

1. Comprehend and retain the information.

2. Believe the information.

3. Weigh the information in the balance and arrive at a choice.

Minors

Family Law Reform Act, 1969

•          Legal age of consent = 16 years & older.

•          At age 16 and 17 years it is wise to discuss treatment with the parents.

•          Parents and others can act in loco parentis in authorising treatment for a child. A competent child cannot always veto treatment which his parents have authorised.

The Gillick Judgement, 1985

Arised from consent for contraception, but applies generally.

The doctor can proceed without the parent's consent or knowledge if:

1. The patient understands the advice.

2. The practitioner cannot persuade the patient to inform her parents.

3. She is likely to continue with sexual intercourse without contraception.

4. Her physical or mental health are likely to suffer without treatment.

5. It is in the patient's best interests to proceed without parental consent.

This produced the concept of 'Gillick competence' = children under 16 can consent to treatment only if they truly understand its nature, purpose and hazards.

Children in Care

When a child is subject of a care order, the local authority can authorise treatment on behalf of a child, since it has 'parental responsibility'. Social workers must inform parents, where practicible. However, if a child is being accommodated on a voluntary basis, the local authority does not have parental responsibility.

Incompetent Adults

F v West, Berkshire, 1989

•          Where a patient temporarily, or permanently, lacks the capacity to give or to express consent to treatment, it is axiomatic that treatment necessary to preserve the life, health or well-being of the patient, may be given without consent.

•          The doctor must act in accordance with a responsible body of relevant professional opinion (Bolam).

•          It is good practice to involve others in the decision-making process, such as relatives and others concerned with the care of the patient.

•          This applies to unconscious patients, also.  

'Do Not Resuscitate' Decisions

The overall responsibility for a 'do not resuscitate' decision rests with the Consultant in charge of the patient's care.

The perspectives of other medical and nursing staff members, as well as  the patient's relatives and close friends, may be valuable in forming the consultant's decision.

Any decision should be reviewed periodically.

More

•          Clinical Research - Participation should be noted in the patient's clinical records. Written consent should be obtained.

•          Photographs or video - Consent is necessary. The precise nature and intended use should be explained to the patient. Plans for disposal of the material should be discussed with, and approved by,  the patient.