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It is common knowledge in the UK that patients have a right to
accept or refuse medical treatment, placing an obligation upon
healthcare professionals to obtain their patients’ consent
prior to undertaking any tests or procedures, but the validity of
consent will be nullified if certain essential elements of the
consent process are not present. This can have obvious implications
for those who have suffered injuries as a result of treatment and
may be considering pursuing a claim for clinical
How is informed consent obtained?
Consent need not be in writing, and for minor tests and
procedures of a straightforward nature, verbal consent would
typically be given following an explanation by a healthcare
professional about the procedure and the reasons for it.
Alternatively, you may imply your consent through your actions,
e.g. attending your GP with some form of sickness implies that you
wish to be treated for it.
For a more significant procedure, such as an operation in
hospital, you would be asked to sign a consent form prior to the
procedure being undertaken. A signed consent form will not
constitute valid consent unless certain obligations have been met
by the healthcare provider to ensure, that when consent is
obtained, the patient has given their “informed
To do this, the patient must be fully advised about the need for
the procedure, what it involves and any potential risks, side
effects and possible outcomes. There may be alternative treatments
or approaches to treatment, which the patient may prefer or may be
in the patients’ interests to have instead, which must be
discussed with the patient. Additionally, the implications of
refusing treatment must also be discussed.
The aim is to ensure that when a patient does give their
consent, they do so from a position of fully understanding all of
their potential choices and consequences.
Notably, in Montgomery v Lanarkshire Health Board
(2015) the patient was not fully informed regarding the
risks and alternatives to a vaginal delivery for her child, who
sadly suffered a severe and catastrophic hypoxic brain injury as a
A second essential element of informed consent is giving the
patient sufficient time to fully reflect upon the information they
have been given, so that when/if they do consent to treatment, they
can be satisfied it is the right decision for them. It is
unacceptable for medical professionals to rush or coerce patients
into making a decision. Indeed, a person would not agree to buy a
house or car without taking the time to consider their options
– why would choosing whether to have surgery be any
Who can and cannot consent to treatment?
The vast majority of patients are able to make decisions
regarding their own health and medical treatment.
However, there are situations where a patient is unable to give
consent, such as when the patient does not have mental capacity.
Consent is then typically given by a family member, or someone who
holds Lasting Power of Attorney for them. For certain mental health
conditions, treatment can be given without a patient’s
Similarly, when consent is required for a child to undergo
treatment, discussions surrounding treatment will be had with those
who have parental responsibility so that they are fully informed
about the treatment options, before being asked to provide consent
on behalf of their child.
A child under 16 may wish to undertake treatment without their
parent’s knowledge or against their wishes, but this is only
possible if the child is of sufficient age and maturity; has full
comprehension of proposed treatments; and is therefore considered
legally able to consent to treatment (so-called
Finally, there are emergency situations where a patient may be
too ill to give their consent to treatment and in such a situation
healthcare professionals are able to provide treatment under the
doctrine of best interests or to save/preserve life.
Healthcare professionals have a professional and ethical duty to
ensure their patient always consents to treatment from a fully
informed perspective. If the approach to the consenting process is
not scrupulous, the ability of patients to make logical decisions
about their treatment can be significantly impaired, with
potentially life-changing consequences.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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