Consent
- Clinicians may have expert knowledge of disease, treatment and prognosis, but the patient
has expert knowledge of their own values, preferences and goals. Consultations should be
viewed as ‘a meeting between experts.’
Battery and Negligence
- Acting without proper consent lays you open to a legal charge of: Battery, or Negligence
- Battery is …
o Touching without consent
o There must be direct physical contact, but no harm need result
- Negligence is …
o A breach of duty of care that results in harm – part of that duty of care is to impart
sufficient information to enable the patient to make a choice, i.e., give their consent.
- To win in negligence it is necessary to prove three things…
o That a duty of care existed
o That duty was breached
o Harm resulted to the claimant as a result of that breach (causation)
Valid Consent
- In order for consent to be valid, it must be:
o Ongoing – the patient can withdraw their consent at any point
o Voluntary – they must be free from coercion or undue influence
o Informed – they must be given sufficient information (but how much is ‘sufficient’?)
o Capacitous – the patient must have the cognitive capacity to give their consent
Informed Consent
- ‘Standard of disclosure’ refers to how much detail must be given to validate the consent as
being ‘informed’
- Balance between too much detail and too little
Capacitous
Those over 16
- Mental Capacity Act 2005 applies. A patient lacks capacity if:
- 1. There is a disorder of the mind or brain affecting their ability to make that decision
- 2. And, they are unable to:
o Understand the information,
o Retain the information,
o Use and weight the information, OR
o Communicate their decision?
Those under 16 (Gillick rules)
- Understand the medical issues
- Understand the moral and family issues
- Have the maturity to reach a decision, and not merely be repeating the views of another
person
- Clinicians may have expert knowledge of disease, treatment and prognosis, but the patient
has expert knowledge of their own values, preferences and goals. Consultations should be
viewed as ‘a meeting between experts.’
Battery and Negligence
- Acting without proper consent lays you open to a legal charge of: Battery, or Negligence
- Battery is …
o Touching without consent
o There must be direct physical contact, but no harm need result
- Negligence is …
o A breach of duty of care that results in harm – part of that duty of care is to impart
sufficient information to enable the patient to make a choice, i.e., give their consent.
- To win in negligence it is necessary to prove three things…
o That a duty of care existed
o That duty was breached
o Harm resulted to the claimant as a result of that breach (causation)
Valid Consent
- In order for consent to be valid, it must be:
o Ongoing – the patient can withdraw their consent at any point
o Voluntary – they must be free from coercion or undue influence
o Informed – they must be given sufficient information (but how much is ‘sufficient’?)
o Capacitous – the patient must have the cognitive capacity to give their consent
Informed Consent
- ‘Standard of disclosure’ refers to how much detail must be given to validate the consent as
being ‘informed’
- Balance between too much detail and too little
Capacitous
Those over 16
- Mental Capacity Act 2005 applies. A patient lacks capacity if:
- 1. There is a disorder of the mind or brain affecting their ability to make that decision
- 2. And, they are unable to:
o Understand the information,
o Retain the information,
o Use and weight the information, OR
o Communicate their decision?
Those under 16 (Gillick rules)
- Understand the medical issues
- Understand the moral and family issues
- Have the maturity to reach a decision, and not merely be repeating the views of another
person
