Consent

Kate Rimmer

Consent is the voluntary permission of a patient to be given a treatment.  Consent must be obtained wherever possible before all treatments and procedures, reflecting the importance of individual patient autonomy in healthcare. 

Consent may be implied by the action of the patient, for example holding out their arm for a blood test.  Expressed written consent is usual practice where invasive procedures or anaesthesia are involved, and for medical treatments where there are significant risks to consider. 

Consent is the voluntary permission of a patient to be given a treatment.  Consent must be obtained wherever possible before all treatments and procedures, reflecting the importance of individual patient autonomy in healthcare.  Consent may be implied by the action of the patient, for example holding out their arm for a blood test.  Expressed written consent is usual practice where invasive procedures or anaesthesia are involved, and for medical treatments where there are significant risks to consider. 

Gaining consent from patients in the critical care environment can be very challenging.  It is important for all staff involved in the care of such patients to have an understanding of the law in relation to consent, and an awareness of the processes involved when obtaining consent for treatment. 

When obtaining informed consent for a treatment, the patient must be given all the information they need to make a judgement about what treatment they would prefer, in a way that they are able to understand.  This also has to include discussion of the option of not having any treatment at all.  Patients must be able to:

  • Understand all the information given to them
  • Weigh the information, considering the benefits and risks of each of the options available to them
  • Use that information to reach a decision about what is the best option for them personally
  • Communicate that decision to the staff caring for them

Often patients in critical care lack capacity to make decisions, having difficulty with one or more of these steps. Common reasons for this include the effects of their disease process, but also the influence of sedative drugs.  It is important for staff to help the patient to participate in the decision-making process as much as possible.  Examples of such help are using written information for patients to read, and the use of communication aids with patients who are unable to speak.   Further information on capacity in critical care can be found in this post.

In the event that a patient is unable to make a decision for themselves, the medical team will need to make a decision in the patient’s best interest.  It is good practice to discuss the decision made and the reasons for it with the patient’s relatives, and it is important to document the decision and any discussions clearly in the medical record.  When having discussions with family members, it is important to be clear that they are not required to consent on behalf of their relative, but rather to aid the best interests decision made by the medical team.   Family members are not able to consent on behalf of their relatives unless they have lasting power of attorney for their family member, a fact often misunderstood by relatives who have family members in critical care. 

Lasting power of attorney (LPA) for health and welfare decisions is a legal process that is undertaken when an individual (the ‘donor’) has capacity, which allows them to give another individual or individuals (‘attorneys’) the legal right to make decisions on their behalf if they lose capacity in future.  This can include making decisions about life sustaining treatment if specifically documented.  The individuals involved should be able to provide the legal document to show that this is the case.  It is important to ensure that an LPA is the correct one, as those with LPA covering property and financial affairs have no legal right to make healthcare decisions.  The Office of the Public Guardian is the governmental agency that regulates these documents, and through their website it is possible to find out if an individual has a valid lasting power of attorney. 

Key Recommendations:

  • Involve patients in decisions about their own treatment as much as possible, giving them every opportunity to decide. 
  • Remember the importance of documenting the consent process.
  • If making a best interests decision, involve the family as much as possible and check whether anyone holds lasting power of attorney for healthcare. 

This post has not considered the care of children in critical care, or consent in the context of research.  It does not constitute nor replace formal legal advice.  

Kate is a Consultant Anaesthetist at the Royal Victoria Infirmary, Newcastle.  She has a Masters degree in medical law, with an interest is consent and capacity.