Consent and medico-legal considerations

Summary

Individuals have a fundamental right to determine what happens to their own bodies. It is unlawful and unethical to carry out a medical procedure without first obtaining valid consent. Legal aspects of medical practice are subject to continuous change and it is necessary for health professionals to keep abreast of developments in medical law. In particular the Mental Capacity Act 2005 is likely to have a profound influence on current practice.

What is consent?

While there are various definitions of consent, essentially it identifies the agreement between patients and health professionals to provide care. For consent to be valid one must appreciate the essential principles of valid consent. This requires that the patient must be adequately informed, have the capacity to make the decision for him/her self and make the decision voluntarily. Nobody can give or withhold consent on behalf of a competent adult.

Capacity

Capacity is the decision-making ability of an individual in relation to a specific matter at the material time, which is not impaired due to a disturbance in functioning of the mind or the brain either temporarily or permanently.

All registered medical practitioners are eligible to assess capacity. Adults are always assumed to have capacity unless demonstrated otherwise. Capacity assessments are decision-specific and may fluctuate over time. Patients with mental illness may have capacity to consent to treatment for physical illness even when psychiatrically unwell or vice versa.

Prior to a capacity assessment an individual must be provided with all the relevant information including the nature and purpose of the proposed intervention, the risks associated with accepting or refusing the intervention and other available options.