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What To Look Out For During The Consenting Process

A Guide to Clinical Consent

Handing over permission to a medical professional before treatment can be an especially daunting and confusing process.

  • "I didn’t read the consent form" 
  • "I didn’t understand the consent form" 
  • "If only the doctor had warned me of this terrible complication, I never would have agreed to his treatment."

These statements are often made by patients who have suffered poor outcomes following medical treatment. It is therefore important that patients understand what consent to treatment involves.

Consent to Treatment

Consent to treatment is the principle that a person must give permission before they receive any type of medical treatment, test or examination. This must be done on the basis of an explanation by a clinician, a consenting process. Failure to obtain the patient's consent for treatment, test or examination could be construed as a crime or civil offence.

For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision.

  • Voluntary – the decision to either consent or not to consent to treatment must be made by the person themselves, and must not be influenced by pressure from medical staff, friends or family.
  • Informed – the person must be given all of the information in terms of what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments, and what will happen if treatment doesn't go ahead.
  • Capacity – the person must be capable of giving consent, which means they understand the information given to them and they can use it to make an informed decision.

If an adult has the capacity to make a voluntary and informed decision to consent to or refuse a particular treatment, their decision must be respected. This is still the case even if refusing treatment would result in their death, or the death of their unborn child.

Consent can be given:

  • Verbally – for example, by saying they're happy to have an X-ray
  • In writing – for example, by signing a consent form for surgery
  • Non-verbal - someone could also give non-verbal consent, as long as they understand the treatment or examination about to take place. For example, holding out an arm for a blood test.

The Consenting Process

This is the discussion between the clinician and patient about a planned medical treatment or procedure. The duty is on the clinician to ensure that they have given a patient all the information they require to decide whether or not to undergo the treatment or procedure.

A clinician should do their best to understand the patient’s views and preferences, and the outcomes they’re most concerned about. It’s important that clinicians have a discussion with patients rather than make assumptions.

Such information to be given by a clinician:-

  • The diagnosis and prognosis
  • Any uncertainties about these, and options for further investigations
  • Pptions for treating or managing, including the option not to treat
  • The purpose of any proposed investigation or treatment and what they would involve
  • Potential risks, benefits, burdens and likelihood of success for each option
  • Risks that might result in a serious adverse outcome, even if the likelihood is very small.
  • Less serious side effects or complications if they occur frequently, and what to do if any are experienced.
  • Complications and side effects the patient is most concerned about.
  • The right to a second opinion.

If a patient changes their mind at any point before the procedure then the patient is entitled to withdraw their previous consent.

The Consent Form

This is a formal, legal agreement that a patient signs prior to a medical procedure, test or examination to confirm that they have agreed to the treatment or procedure and are aware of any risks that might be involved. A copy of the Consent Form is usually given to the patient and the original kept by the clinician as evidence of the patient’s agreement.

A consent form usually details:

  • The treatment or procedure to be done
  • The expected benefit of the treatment or procedure
  • The expected risks of the treatment or procedure

The primary purpose of the consent form is to provide evidence that the patient gave consent to the procedure, test or examination. Obviously a patient should therefore ensure that they have fully read the Consent Form before signing to ensure they have fully understood the treatment or procedure being performed.

However, a Consent Form itself is not the Consent. The dialogue with the patient is the key element of the consent process. If a clinician has failed to properly obtain informed consent - then a claim for clinical negligence can still be brought despite a Consent Form having been signed.

If you wish to contact us for further advice telephone us on 0191 5666500 and ask for a member of Clinical Negligence Team or fill in our short enquiry form.

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