Consent

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There is a general legal and ethical principle that before a doctor embarks on physical investigation or treatment of a competent patient that he must obtain valid consent. This is based on respect for the patient's autonomy, where that patient is of adult years.

When the patient is a minor, consent can be given by those with parental responsibility or by the minor, if they are Gillick competent.

For more information please see the article on minors.

There is an "obligation to make appropriate disclosure of relevant information to the patient, so that the exercise of autonomy was meaningful".

Consent may be express or implied; it does not need to be written to be valid in law. e.g offering one's arm for an injection or phlebotomy in the surgery. However he must understand the "nature and purpose" of the proposed course of action. Merely having the detainee sign a form expressing consent may not protect the physician from litigation unless an explanation actually has been given

QuotationMarkLeft.png Consent may be given expressly, as when a patient authorises a surgeon to perform an operation, but it may just as well be implied. Actions often speak louder than words. Holding up one’s bare arm to a doctor at a vaccination point is as clear an assent as if it were expressed in words QuotationMarkRight.png Scarman LJ in Gillick

Failure to obtain such valid consent may leave the doctor liable to an action in battery.

Contents

GMC guidance on consent

The General Medical Council has published guidance on consent. The most recent guidance came into effect on 2nd June 2008.[1] This guidance replaces earlier guidance.[2]

Police or Customs Imaging

There are provisions in the Drugs Act for sufficiently senior police officers to request examinations with ultrasound or x-rays. Such imaging may not be done other than at a hospital or simlar place where diagnostic imaging is done. The right to request does not equate to an obligation to perform, and in a non-therapeutic examination serious risks may be attached to any doubt about consent. The radiation dose of computer tomography seems potentially to be taken as battery. Careful consideration and advice from defence societies may be indicated.

Department of Health guidance on consent

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This applies in England

The Department of Health published the second edition of its Reference guide to consent for examination or treatment in July 2009.[3]

Treatment without consent

There are some instances in which a patient may be treated or removed to a hospital or similar place without consent. They include:

  • the patient lacks mental capacity to consent (or where there is doubt about the patient's mental capacity);
  • treatment is in the patient's best interests; and
  • treatment is necessary to ensure improvement or prevent deterioration in health.
(This is known as the 'doctrine of necessity' and is not necessarily confined to emergency situations.)[4]

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References

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