SHN2004 (Acute Care) – Consent Recap
Consent – A Recap
Introduction
You will already have had sessions on Consent in your first year
This session will provide an overview but also provide context for acute and
emergency situations
Consent
Three types of consent:
1. Consent in respect of a capable adult – what are the key principles?
2. Consent in respect of an incapable (incompetent) adult – what are the key
principles?
3. Consent in respect of those aged below 18 – what are the key principles?
Consent and the capable (competent) adult patient (Capable Adult)
Consent is at the heart of the relationship between patient/health care professional.
Patient relies on the professional’s expertise/knowledge/advice, but up to patient to
decide whether s/he will accept/reject treatment.
Patient must understand the information he/she is given, which must be sufficient
for him/her to evaluate the available choices, and s/he must feel free to make that
choice.
Determining the appropriate amount of information or a person’s ability to
understand and evaluate it can be difficult in a health care context, and the very
nature of the health care relationship and health care setting can lead to implicit if
not explicit coercion.
Why consent is necessary - legal
Our Law presumes that, in the absence of evidence to the contrary, adult patients
are capable of giving or withholding consent to treatment
It presumes capacity, rationality and freedom
Need for consent based on the ethical principle of RESPECT FOR AUTONOMY
This therefore means that any treatment, investigation or deliberate touching
without consent may be a battery or negligence (civil wrongs under the law of tort)
which may result in an action in the Civil courts (resulting in compensation) and/or a
crime – which may result in an action in a criminal court (resulting in punishment for
the perpetrator).
Consent may be withdrawn at any time, even after signing of a consent form, and to
proceed with treatment where consent has effectively been withdrawn would
constitute a battery
Claims that patient can bring
1
, SHN2004 (Acute Care) – Consent Recap
Two types of claim the patient can bring:
1. Battery i.e. that the patient did not consent to the treatment /procedure. As long as
the patient has been informed in broad terms of the nature of the procedure then
this will usually be sufficient to avoid liability in battery.(e.g. consent to repair uterus
is completely different procedure to hysterectomy and therefore HCP held liable).
Can also be held criminally responsible.
o Battery is any non-consensual touching - it does not have to harm the
patient. A doctor can commit a battery even though the doctor considers he
is acting in the best interests of his patient by treating him/her. To avoid
liability in battery the patient should be informed in broad terms of the
nature of the procedure that is intended to be carried out and give consent
to it.
o Devi v West Midlands RHA [1980] C.L.Y. 687
A woman underwent a hysterectomy to which she did not consent
(she had given consent to repair her uterus). The Court found the
surgeon liable in battery as there was total lack of consent to the
nature of the operation.
o Wells v Surrey AHA (1978)
A 35 year old Catholic mother, while exhausted during labour with her
third child, was offered sterilisation and signed a consent form.
She later sued in assault saying that her consent was not valid as she
signed it when she did not realise the implication because of her
particular condition.
The action failed on the basis that she did know what the implications
of signing a consent form were
BUT hospital found negligent for failing to give woman proper advice
and counselling which was an important preliminary to sterilisation
2. Negligence. This can also include inadequate information provided (i.e. did not fully
consent to the action undertaken)
o Generally speaking most actions will take place under the law of negligence
in that the medical profession breached their duty of care to the patient
when obtaining consent to the treatment/procedure
o In order for consent to be valid it requires:
Age (generally 18 although 16- 17 year olds and Gillick competent
children can also give consent);
Capacity/competence;
Information and explanation
Without duress/coercion
Types of Consent
Imputed
2
Consent – A Recap
Introduction
You will already have had sessions on Consent in your first year
This session will provide an overview but also provide context for acute and
emergency situations
Consent
Three types of consent:
1. Consent in respect of a capable adult – what are the key principles?
2. Consent in respect of an incapable (incompetent) adult – what are the key
principles?
3. Consent in respect of those aged below 18 – what are the key principles?
Consent and the capable (competent) adult patient (Capable Adult)
Consent is at the heart of the relationship between patient/health care professional.
Patient relies on the professional’s expertise/knowledge/advice, but up to patient to
decide whether s/he will accept/reject treatment.
Patient must understand the information he/she is given, which must be sufficient
for him/her to evaluate the available choices, and s/he must feel free to make that
choice.
Determining the appropriate amount of information or a person’s ability to
understand and evaluate it can be difficult in a health care context, and the very
nature of the health care relationship and health care setting can lead to implicit if
not explicit coercion.
Why consent is necessary - legal
Our Law presumes that, in the absence of evidence to the contrary, adult patients
are capable of giving or withholding consent to treatment
It presumes capacity, rationality and freedom
Need for consent based on the ethical principle of RESPECT FOR AUTONOMY
This therefore means that any treatment, investigation or deliberate touching
without consent may be a battery or negligence (civil wrongs under the law of tort)
which may result in an action in the Civil courts (resulting in compensation) and/or a
crime – which may result in an action in a criminal court (resulting in punishment for
the perpetrator).
Consent may be withdrawn at any time, even after signing of a consent form, and to
proceed with treatment where consent has effectively been withdrawn would
constitute a battery
Claims that patient can bring
1
, SHN2004 (Acute Care) – Consent Recap
Two types of claim the patient can bring:
1. Battery i.e. that the patient did not consent to the treatment /procedure. As long as
the patient has been informed in broad terms of the nature of the procedure then
this will usually be sufficient to avoid liability in battery.(e.g. consent to repair uterus
is completely different procedure to hysterectomy and therefore HCP held liable).
Can also be held criminally responsible.
o Battery is any non-consensual touching - it does not have to harm the
patient. A doctor can commit a battery even though the doctor considers he
is acting in the best interests of his patient by treating him/her. To avoid
liability in battery the patient should be informed in broad terms of the
nature of the procedure that is intended to be carried out and give consent
to it.
o Devi v West Midlands RHA [1980] C.L.Y. 687
A woman underwent a hysterectomy to which she did not consent
(she had given consent to repair her uterus). The Court found the
surgeon liable in battery as there was total lack of consent to the
nature of the operation.
o Wells v Surrey AHA (1978)
A 35 year old Catholic mother, while exhausted during labour with her
third child, was offered sterilisation and signed a consent form.
She later sued in assault saying that her consent was not valid as she
signed it when she did not realise the implication because of her
particular condition.
The action failed on the basis that she did know what the implications
of signing a consent form were
BUT hospital found negligent for failing to give woman proper advice
and counselling which was an important preliminary to sterilisation
2. Negligence. This can also include inadequate information provided (i.e. did not fully
consent to the action undertaken)
o Generally speaking most actions will take place under the law of negligence
in that the medical profession breached their duty of care to the patient
when obtaining consent to the treatment/procedure
o In order for consent to be valid it requires:
Age (generally 18 although 16- 17 year olds and Gillick competent
children can also give consent);
Capacity/competence;
Information and explanation
Without duress/coercion
Types of Consent
Imputed
2
