Why consent is crucial
Patients have a fundamental legal and ethical right to determine what happens to their own bodies. Valid consent to treatment is therefore absolutely central in all forms of healthcare, from providing personal care to undertaking major surgery. Seeking consent is also a matter of common courtesy between health professionals and patients. For consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the intervention in question (this will be the patient or someone with parental responsibility for a patient under the age of 18, someone authorised to do so under a Lasting Power of Attorney (LPA) or someone who has the authority to make treatment decisions as a court appointed deputy). Acquiescence where the person does not know what the intervention entails is not ‘consent’.
The Human Rights Act 1998 came into force in October 2000, giving further effect in the UK to the rights enshrined in the European Convention on Human Rights. All public authorities are required to act in accordance with the rights set out in the Human Rights Act, and all other statutes have to be interpreted by the courts so far as possible in accordance with those rights. The main articles that are likely to be relevant in medical case law are Article 2 (protection of the right to life), Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), Article 5 (the right to liberty and security), Article 8 (the right to respect for private and family life), Article 9 (freedom of thought, conscience and religion ), Article 12 (the right to marry and found a family) and Article 14 (prohibition of discrimination in the enjoyment of Convention rights).
Compliance with the Human Rights Act is largely reflected in existing good ethical practice, but all health practitioners should be aware of the Human Rights Act and ensure that they act in compliance with it. The British Medical Association (BMA) has a handbook of ethics and law that gives advice on how the Human Rights Act relates to a range of relevant issues.
The Department of Health has issued a range of guidance documents on consent and these should be consulted for details of the law and good practice requirements on consent. There have been a number of legal cases that health professionals should be aware of: see Appendix F. This policy sets out the standards and procedures at Ashford & St Peter’s Hospitals NHS Trust, the aim is to ensure that health professionals are able to comply with the guidance. While this document is primarily concerned with healthcare, social care colleagues should also be aware of their obligations to obtain consent before providing certain forms of social care, such as those that involve touching the patient or client.
|Compiled by:||Deputy Medical Director Director of Patient Safety|
|Ratified by:||Quality Governance Committee (Chair’s action)|
|Date Ratified:||December 2016|
|Date Issued:||March 2017|
|Review Date:||December 2019|
|Target Audience:||All clinical staff|
|Contact name:||Deputy Medical Director Director of Patient Safety|
- Guidelines for the production of written patient information
- Policy for the provision of patient information
- Guidelines for using Interpreting Services for Non-English Speaking Patients & Those with Communication Impairments
- Guidance for Doctors on Post-Mortem Examination
- Advance Decisions to Refuse Treatment Guidance for Staff
- Assessing a patient’s Mental capacity to Make Decisions
- Mental Capacity Act 2005
- Mental Capacity Act 2005 - Code of Practice