Consent

CHAPTER 6 Consent



6.1 Obtaining consent



[6.1.1] What is consent?


Consent, in this context, is the permission given by one person to be touched by another. Generally speaking, no-one is allowed to touch another person without consent. This principle is often referred to as the principle of self-determination or body inviolability. It reflects the law’s concern with patient autonomy.



The law regards the principle of self-determination very highly. It has been said that the slightest touching of another person’s body without consent can give rise to a civil claim of battery, or a charge of criminal assault. Poor consenting practices can also lead to claims of negligent advice: see [6.3.1]. It is not a defence to say that the touching was done with good intentions or in the absence of malice.


The law will excuse touching that was consented to. There are also other excuses accepted by the law such as self-defence, necessity or a lawful excuse contained in legislation (such as mental health legislation). These are discussed below.



[6.1.2] When is consent required?


Consent is generally required whether the touching is direct or indirect (for example, giving the patient a drug or exposing them to radiation during an X-ray), even for very minor treatment. No harm need be done to the patient for actions in assault and battery to arise. Even treatment that benefits the patient may attract a legal sanction, unless consent has been obtained or some other defence is available.



Case example


In the Canadian case of Malette v Shulman (1990) 67 DLR (4th) 321, a doctor was held liable for battery when he ignored the written advance directive of a Jehovah’s Witness to refuse blood products. The plaintiff was awarded $20,000 at trial, even though the blood transfusion had saved her life. The defendant appealed the amount of damages awarded. The court stated:



In [the defendant’s] submission, given the findings as to the competence of the treatment, the favourable results, the doctor’s overall exemplary conduct and his good faith in the matter, the battery was technical and the general damages should be no more than nominal. While the submission is not without force, damages of $20,000 cannot be said to be beyond the range of damages appropriate to a tortious interference of this nature. The trial judge found that Mrs Malette suffered mentally and emotionally by reason of the battery. His assessment of general damages was clearly not affected by any palpable or overriding error and there is therefore no basis upon which an appellate court may interfere with the award [at 338–9].


Health professionals often associate the consent process with major medical treatments, but consent is required for most of the physical interactions that take place with patients, however minor.



[6.1.3] What form should consent take?


Consent can be express (either oral or written) or implied.


Consent may be implied by the patient’s conduct; for example a patient may hold out their arm to have their blood pressure measured. Where possible it is advisable (often with a simple inquiry) to confirm that consent is being given (the patient who holds out an arm may be surprised when an injection is given rather than the expected blood pressure test).



In nearly all circumstances express consent is a safer option than implied consent because there is less likelihood of there being miscommunication between the health professional and the patient.



[6.1.4] Must consent be in writing?


There is no general requirement for consent to be given in writing, although in some situations written consent is required by legislation.


The value of written consent is twofold:


• It may assist the practitioner in any subsequent legal proceedings, as it may be viewed as evidence that consent was obtained and that the treatment was discussed with the patient.

• The process of signing a consent form may signify to the patient that an important decision is being made, and offer an opportunity for clarification or the provision of more information.


Health departments and/or hospitals may have policies on what consents need to be evidenced in writing. For example, Consent to Medical Treatment—Patient Information PD2005_406 requires that a model consent form be used for major procedures, including:


• all operations or procedures requiring general, spinal, epidural or regional anaesthesia or intravenous sedation

• any invasive procedure or treatment where there are known significant risks or complications

• blood transfusions or the administration of blood products

• experimental treatment for which approval of an ethics committee is required (unless there are sound reasons for doing otherwise).

A signed consent form is not needed for minor procedures performed under local anaesthesia.



[6.1.5] Must consent be obtained for every procedure or stage in treatment?


Medical treatment may involve a number of different procedures and a series of patient visits. Information should be provided about the treatment regime at the time when it is proposed. Any written consent will then cover all the procedures involved in the program. It may be inferred from the patient’s attendance that they are consenting to the continuation of treatment, and no additional consent in writing should be required. It is useful to confirm with the patient that they are happy to continue with the treatment program.


If there are variations in the treatment program or new information about the risks, or if new alternative treatments have been identified, it may be necessary for a new form to be completed.



[6.1.6] Can a consent form be faxed or emailed?


It is preferable that any consent form relied on and stored with the patient’s medical records should be an original, rather than a faxed copy, photocopy or emailed copy. There will be circumstances, however, where the original form is not available. In this case a note should be included in the patient’s medical record explaining why the original was not available.


Care should be taken to copy both sides of a double-sided form when it is faxed or photocopied.



[6.1.7] How long does consent remain valid?


This is not specified in legislation. The general rule is that consent remains valid until:


• it is withdrawn by the patient, or

• the patient’s circumstances change in a material respect.

If a significant period of time has elapsed since the consent was obtained the patient should be asked to affirm it. What constitutes a significant period of time will depend on the patient’s particular circumstances.



[6.1.8] Who is responsible for obtaining consent?


The ultimate responsibility of obtaining consent lies with the clinician in charge of the treatment. However, it is possible for that clinician to delegate authority to other healthcare professionals, such as more junior members of staff. The proviso for such delegation is that the person obtaining consent must be fully equipped to deal with the consent process. If appropriate procedures and safeguards are not in place the risk is high that the patient’s consent will not have been obtained.


Similarly, in the course of treatment, consent should be obtained each time the patient is being touched, such as when blood pressure or blood tests are being taken. The healthcare professional who intends to touch the patient has the responsibility of obtaining consent.



If you’re not sure that a patient has consented to a procedure, ask them!



[6.1.9] Does the patient have a right to refuse treatment?


The logical consequence of the health professional’s duty to seek consent is the patient’s legal right to refuse treatment. It has been said that a patient can refuse treatment for whatever reason, even when the absence of treatment will result in their death.


The right to refuse treatment is discussed in chapter 10.



[6.1.10] Can a patient withdraw their consent?


A patient may withdraw their consent at any time. Even if a consent form has been signed and preparations have been made for a procedure to commence, a patient can still change their mind.


Where expense has been incurred it could be argued that the patient may be breaching a contract, but this will be no defence for proceeding in the face of the patient’s withdrawal of consent. To proceed under these circumstances may constitute an assault or a battery.


The circumstances of withdrawal of consent must be considered in the context of the procedure. If the procedure has commenced and it would be unsafe for the patient if it were stopped, it may be in the patient’s best interests to continue. A request to ‘stop’ may in any case not be a withdrawal of consent but a request to relieve the patient’s pain or discomfort.



[6.1.11] Are there limits to what can be consented to?


Yes. The law places limits on the types of bodily interference that can be consented to. The best example of the limits of consent is voluntary euthanasia, which is illegal in every jurisdiction in Australia. The fact that a person consents to being killed is no defence to a criminal charge of homicide.


Other forms of bodily interference in which grievous bodily harm may result may be consented to, but only when the law regards the activity as having some sort of public benefit. Heavy contact sports such as boxing and rugby union may be consented to even though there is a considerable risk of serious injury, because the law regards such activities as having benefits for the public. In contrast, it has been said that extreme forms of sadomasochistic behaviour cannot be consented to because there is no justifiable public interest.



Case example


In R v Brown [1994] AC 212, it was held that consent could not form the basis of a defence to assaults occurring during consensual sadomasochistic acts among a group of homosexuals that included extreme forms of genital torture. The participants were convicted of assault. The House of Lords upheld the conviction on the basis that public policy required that criminal sanctions should be used against conduct that caused serious, although not permanent, injury.


Medical treatments, including risky surgeries, are ordinarily considered in the public interest, even though they may also involve grievous bodily harms with an appreciable risk of death or permanent injury.



6.2 The requirements for a valid consent



[6.2.1] What are the requirements for a valid consent?


For a patient’s consent to be valid the following criteria must be met:


• competence

• voluntariness

• specificity

• understanding.

Related posts:

  1. Competence
  2. Recognising legal questions in clinical practice
  3. Incompetent patients and end-of-life decisions
  4. Mental health

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Mar 25, 2017 | Posted by in GENERAL SURGERY | Comments Off on Consent

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