Decision Making and Consent
Consent is a fundamental legal and ethical principle. All patients have the right to be involved in decisions about their treatment and care and to make informed decisions if they can. The exchange of information between doctor and patient is essential to good decision making. Doctors must be satisfied that they have a patient’s consent or other valid authority before providing treatment or care.
For consent to be valid, it must be given voluntarily and freely, without pressure or undue influence being exerted to accept or refuse treatment, by an appropriately informed person who has the capacity to consent to the intervention in question. In adults, consent may only be provided by the patient, someone authorised to do so under a Lasting Power of Attorney, or someone who has the authority to make treatment decisions, such as a court appointed deputy in England and Wales, or a guardian with welfare powers in Scotland. No one else can make a decision on behalf of an adult who has capacity.
Types of consent
Explicit or implied patient consent is needed for all examinations, treatments, or interventions, with the exceptions of emergency treatment or when prescribed by law (for example compulsory treatment under mental health legislation). Consent is not a one-off event — ongoing discussion is needed as treatment evolves.
- Explicit or expressed consent is when a person actively agrees verbally or in writing. Note that although a patient can give consent verbally, you should make sure this is recorded in their notes.
- Implied consent is signalled by the behaviour of a person who is aware of and understands, the proposed course of action. For some quick, minimally or non-invasive interventions – particularly examinations – it would be reasonable to rely on a patient’s non-verbal consent.
Principles of decision making and consent
- All patients have the right to be involved in decisions about their treatment and care and be supported to make informed decisions if they are able.
- Decision making is an ongoing process focused on meaningful dialogue: the exchange of relevant information specific to the individual patient.
- All patients have the right to be listened to, and to be given the information they need to make a decision and the time and support they need to understand it.
- Doctors must try to find out what matters to patients so they can share relevant information about the benefits and harms of proposed options and reasonable alternatives, including the option to take no action.
- Doctors must start from the presumption that all adult patients have capacity to make decisions about their treatment and care. A patient can only be judged to lack capacity to make a specific decision at a specific time, and only after assessment in line with legal requirements.
- The choice of treatment or care for patients who lack capacity must be of overall benefit to them, and decisions should be made in consultation with those who are close to them or advocating for them.
- Patients whose right to consent is affected by law should be supported to be involved in the decision-making process, and to exercise choice if possible.
Supporting patients' decision making
The exchange of information between doctor and patient is central to good decision making. It’s during this process that you can find out what’s important to a patient, so you can identify the information they will need to make the decision.
You must give patients the information they want or need to make a decision. This usually includes:
- diagnosis and prognosis
- uncertainties about the diagnosis or prognosis, including options for further investigation
- options for treating or managing the condition, including the option to take no action
- the nature of each option, what would be involved, and the desired outcome
- the potential benefits, risks of harm, uncertainties about and likelihood of success for each option, including the option to take no action.
Patients need relevant information to be shared in a way they can understand and retain, so they can use it to make a decision. To help patients understand and retain relevant information you should:
- share it in a place and at a time when they are most likely to understand and retain it
- anticipate whether they are likely to find any of it distressing and, if so, be considerate when sharing it
- accommodate a patient’s wishes if they would like to record the discussion
- accommodate a patient’s wishes if they would like anyone else – a relative, partner, friend, carer or advocate – to be involved in discussions and/or help them make decisions
- use an interpreter or translation service if they have difficulty understanding spoken English
- share it in a format they prefer - written, audio, translated, pictures or other media or methods
- give them time and opportunity to consider it before and after making a decision.
If you disagree with a patient's choice of option
- You must respect a competent patient’s decision to refuse an investigation or treatment, even if you think their decision is wrong or irrational. You must not assume a patient lacks capacity simply because they make a decision that you consider unwise. You may advise the patient of your clinical opinion, but you must not put pressure on them to accept your advice. You must be careful that your words and actions do not imply judgement of the patient or their beliefs and values.
- If their choice of option (or decision to take no action) seems out of character or inconsistent with their beliefs and values, it may be reasonable to check their understanding of the relevant information and their expectations about the likely outcome of this option and reasonable alternatives. If it’s not clear whether a patient understands the consequences of their decision, you should offer more support to help them understand the relevant information.
- If a patient asks for treatment or care that you don’t think would be in their clinical interests, you should explore their reasons for requesting it, their understanding of what it would involve, and their expectations about the likely outcome. This discussion will help you take account of factors that are significant to the patient and assess whether providing the treatment or care could serve the patient’s needs. If after discussion you still consider that the treatment or care would not serve the patient’s needs, then you should not provide it. But, you should explain your reasons to the patient and explore other options that might be available, including their right to seek a second opinion.
Treatment in emergencies
- In an emergency, decisions may have to be made quickly so there’ll be less time to apply this guidance in detail, but the principles remain the same. You must presume a conscious patient has capacity to make decisions and seek consent before providing treatment or care.
- In an emergency, if a patient is unconscious or you otherwise conclude that they lack capacity and it’s not possible to find out their wishes, you can provide treatment that is immediately necessary to save their life or to prevent a serious deterioration of their condition. If there is more than one option, the treatment you provide should be the least restrictive of the patient’s rights and freedoms, including their future choices. Any treatment decision made in the absence of consent must be made in that person’s best interests.
- For as long as the patient lacks capacity, you should provide ongoing care. If the patient regains capacity while in your care, you must tell them what has been done and why, as soon as they are sufficiently recovered to understand. And you must discuss with them the options for any ongoing treatment.