Defining consent
NHS Choices ( 2010) defines consent as:
"the principle that a person must give their permission before they receive any type of medical treatment. Consent is required from a patient regardless of the type of treatment being undertaken, from a blood test to an organ donation"
Patients are not obliged to undergo treatment merely because a healthcare professional feels it appropriate. Individuals retain the right to choose whether or not to have their bodily integrity interfered with, or damaged by others. Failure to gain consent is regarded in law as Trespass against the person. If a patient is touched by the healthcare professional without consent, this constitutes a crime of battery in English law and assault in Scottish law (Mason & Laurie, 2010). All healthcare professionals have a responsibility to ensure that they gain consent before proceeding with any care or treatment.
For an overview of legal and ethical issues in consent see the Ethics Network Guidance. Consent to treatment can be viewed from two perspectives.
Expressed consent - a patient is asked to undergo treatment and agrees to that treatment.
Implied consent occurs when the patient adopts particular behaviours, consistent with understanding and complying with the requests of the healthcare practitioner such a patient who when asked by the advanced practitioner (AP) to undergo a non invasive procedure such as the recording of their blood pressure, extends their arm to allow the AP to apply the blood pressure cuff. The legal precedent was the case of O'Brien v Cunard Steam Ship Company. For further information see Aveyard, 2002 which can found in the Knowledge Network Journals (athens password required).
Implied consent may also be assumed in the case of an unconscious patient admitted to an emergency department. It would normally be assumed by an advanced practitioner that the patient would consent to the use of life saving measures in an emergency. If the patient subsequently challenged any action undertaken by the advanced practitioner in good faith, the necessity of the act to resolve the emergency would offer a defence to any action against them. However, interventions undertaken by an advanced practitioner while the patient is unconscious must be demonstrated as necessary not merely convenient for the professional. For further information on best interests and action in an emergency see the Ethics Network Guidance.
If necessity cannot be proven then any legal action against the advanced practitioner would be likely to succeed thus highlighting the importance of good record keeping.
For further information on consent and emergency treatment see Whitcher (2008) refer to Knowledge Network Journals (athens password required).
