Four common concerns about getting consent

Obtaining consent is not always straightforward, especially after recent legal changes. Dr Clare Sweeney considers four common dilemmas.

A recent survey of medical graduates working as interns revealed they were routinely asked to get consent for procedures, including those they were unfamiliar with. In the Medical Defence Union’s (MDU) experience, this is a common concern, particularly among NCHDs and those in training. While the delegating doctor should not put a colleague in this position, it is vital for anyone who is uncomfortable to speak up.

1. I have been asked to get consent for a procedure I am not familiar with

In its Guide to Professional Conduct and Ethics for Reg- istered Medical Practitioners (the ‘Guide’), the Medical Council says consent can only be delegated to another doctor who is “suitably trained and qualified; has suffi- cient knowledge of the proposed intervention and of its benefits and risks; and is able to provide the information the patient requires”. (section 16.2)

The Guide adds that no part of the consent process should be delegated to an intern “unless the procedure is a minor one with which the intern is very familiar and you have clearly explained the relevant information about the procedure to them”.

The Medical Council tells doctors they must work within their “sphere of competence” and would expect doctors to refer patients to a colleague if the patient’s investigation or treatment involves knowledge or skills outside their own expertise or experience.

If you are worried about being asked to obtain con- sent, talk to the treating doctor. Explain the limit of your knowledge and skills and your concern that the patient’s consent might not be valid. The treating doctor retains overall responsibility for patient care so it is un- likely they will want to put you in this position. Howev- er, if they are unavailable or will not listen, talk to your line manager.

2. I doubt my patient has the capacity to make a decision

Questioning a person’s capacity should be a last resort and only after all efforts have been made to support the person in their decision-making. An adult patient’s condi- tion, behaviour, or need for support should have no bear- ing on your presumption of capacity.

It is important to recognise that capacity is time and decision-specific – a patient might have capacity in some instances, but lack capacity at other times. Can you delay the treatment decision until the patient has recovered or could you try to ascertain the patient’s wishes by breaking the decision down into a series of simpler choices?

If you need to make an assessment, follow the four- stage test set out in the Assisted Decision-Making (Capacity) Act 2015 (which came into force in April 2023). It states that a patient will lack the capacity to make a decision if they are unable to:

• Understand all of the information relevant to the decision;

• Retain the information for long enough to consider it;

• Use or weigh up that information in their decision-making process;

• Communicate their decision (by any means, including assistive technology).

If a patient lacks capacity, you are required to treat them in accordance with their “will and preferences”, so explore these during discussions about the proposed treatment. Find out whether the patient has a decision support arrangement and engage with their appointed decision supporter according to their role and responsi- bility (there are five different types).

The legal framework is new so it is a good idea to explore the resources provided by the HSE and the new Decision Support Service, including its Code of Practice for Healthcare Professionals.

In future, there will be a searchable online register of decision support arrangements. Contact your medical defence organisation or, if you work in secondary care, your organisation’s legal team.

3. How much do I tell patients about a procedure?

A patient’s consent will not be valid if they are not provided with enough information on which to base their decision, including explaining the risks involved. Adopt a patient-centred approach and talk about risks in a balanced way, taking the patient’s needs into account, for example, by using visual aids or suggesting they have extra support.

HSE has produced a National Consent Policy, which includes a section (4) on providing information. It says that common side-effects and complications should be discussed, as should serious adverse outcomes, even if these are rare and remote, including risks of death, dis- ability, and chronic pain. It notes the Irish courts have ruled the duty to warn is greater with elective, non-ur- gent treatments.

Both the National Consent Policy and the Medical Council, in the Guide, say that information should not be withheld on the basis someone might become upset or refuse treatment.

4. The patient has refused consent

Adult patients with capacity have the right to refuse treat- ment. Even if the decision seems irrational, they are not obliged to justify or explain it.

The Guide says you should “explain clearly to the patient the possible consequences of their decision and offer them a second medical opinion.” (section 18)

Document the refusal in the patient’s record while it is fresh in your mind, including the information provided, and what the patient said. If the consultation raises doubts about their capacity to make a decision, call your medical defence organisation or seek legal advice.