Key Facts

Consent is both an ethical obligation (respect for autonomy) and a legal requirement. Treating a competent patient without valid consent constitutes battery (trespass to the person) in law. The standard of disclosure shifted from doctor-centred (Bolam) to patient-centred (Montgomery) with the 2015 Supreme Court ruling.

Legal Framework

• Common law: consent is required for any touching; absence constitutes battery
• Montgomery v Lanarkshire (2015): doctors must inform patients of material risks that a reasonable person in the patient's position would want to know
• Bolam test (1957): historically, disclosure judged by what a responsible body of doctors would disclose — now largely superseded by Montgomery for consent
• Mental Capacity Act 2005: framework for decision-making for adults lacking capacity
• Children Act 1989: parental responsibility and children's rights

Ethical Principles

• Autonomy: respect for the patient's right to make their own decisions
• Beneficence: acting in the patient's best interest
• Non-maleficence: avoiding harm
• Justice: fair distribution of resources
• Consent operationalises the principle of autonomy

Types of Consent

• Implied: patient's actions indicate agreement (e.g. presenting arm for venepuncture)
• Verbal (express): spoken agreement; appropriate for many treatments
• Written: documented agreement; standard for surgical/invasive procedures; evidence of consent process
• Advance consent: consent given in advance for future treatment
• Broad consent: consent for a category of interventions (e.g. research biobank)

Elements of Valid Consent

1. Information: nature and purpose of treatment, material risks and benefits, alternatives (including no treatment), expected outcomes
2. Capacity: patient can understand, retain, weigh information, and communicate decision
3. Voluntariness: free from coercion, undue influence, or pressure

Montgomery Standard of Disclosure

• Disclose material risks: risks that a reasonable person in the patient's position would attach significance to
• Also disclose risks that this particular patient would consider significant (subjective element)
• Discuss reasonable alternative treatments
• Ensure patient understands information (not just that information was provided)

Special Situations

• Emergency: can treat without consent if patient lacks capacity and treatment is immediately necessary to preserve life (doctrine of necessity)
• Children <16: can consent if Gillick competent; parental consent also valid; if child refuses, parental consent may override for life-saving treatment
• 16-17 year olds: presumed to have capacity (Family Law Reform Act 1969); refusal can potentially be overridden by court or parental consent
• Adults lacking capacity: treat in best interests per MCA 2005

Red Flags

• Patient signing form without understanding — consent is not valid
• Coercion by family or healthcare professionals — invalidates consent
• Obtaining consent immediately before anaesthesia — poor practice; insufficient time for decision-making
• Consent by wrong person — should be obtained by the treating clinician or someone capable of performing the procedure

Assessment of Consent Process

• Was the patient given sufficient information (Montgomery standard)?
• Was the information presented in an understandable way?
• Was there adequate time for decision-making?
• Was capacity assessed appropriately?
• Was the decision voluntary?
• Was the consent documented?
• Was the consenting clinician appropriately qualified?

Documentation

• Consent form (NHS standard forms: Form 1-4)
• Documented discussion in medical records
• Record of risks discussed, questions asked, and answers given
• Patient information leaflets provided
• Interpreter used if language barrier
• Record of who obtained consent

Best Practice for Consent

• Treat consent as an ongoing process, not a single event
• Provide information in advance where possible (pre-procedure leaflets, clinic consultations)
• Use teach-back technique: ask patient to explain what they understand
• Document the discussion, not just the form signature
• Ensure the person obtaining consent can perform or supervise the procedure
• Respect refusal: a competent adult can refuse treatment even if the refusal leads to death
• Avoid jargon; use visual aids and written materials
• Offer time to think and discuss with family/friends
• Second opinion available if requested

When Consent Cannot Be Obtained

• Emergency treatment: provide immediately necessary treatment in patient's best interests
• Lacking capacity (non-emergency): follow MCA 2005; consult family/friends, IMCA if needed; best interests decision
• Advance Decision to Refuse Treatment (ADRT): valid and applicable ADRT must be respected
• Court declaration: can be sought for complex cases (e.g. treatment withdrawal, disputed cases)

Referral Criteria

• Ethics committee advice for complex cases
• Legal advice if consent is disputed
• Court of Protection for adults lacking capacity (complex/contested decisions)
• Advocate or IMCA appointment if patient has no family/friends

• Valid consent protects both patients and healthcare professionals
• Montgomery ruling has significantly increased emphasis on shared decision-making
• Failure to obtain valid consent can result in claims of battery (no consent) or negligence (inadequate information)
• Consent processes are regularly audited as part of clinical governance
• Well-conducted consent conversations improve patient satisfaction and reduce complaints

NHS Consent Forms

Key Legal Cases in Consent