Consent policy
Protecting you and your rights
Consent policy & procedures
Patients have a legal and ethical right to determine what happens to them. Valid consent to treatment is therefore central to our practice principles and is a legal and ethical requirement.
‘Consent’ is a patient’s agreement for a health professional to provide care.
The aim of this policy is to ensure that all team members:
• Understand the principles of consent
• Understand that treatment performed without consent is assault and a breach of the patient’s human rights
• Understand that patients may indicate consent in a number of ways
• Understand that some patients may for reason of mental incapacity or illness, be unable to give valid consent due to a lack of understanding and in this situation, we will always seek to put the interests of the patient first.
Patients may indicate consent in a number of ways. Consent can be expressed consent and this may be given either verbally or in written format or it can be implied consent e.g. by making an appointment for a dental examination or by lying in the dental chair and opening their mouth.
In our practice we will always use our best endeavours to obtain valid consent from a patient before undertaking any treatment. Valid consent always requires an explanation of the treatment type, objectives, expected outcomes and potential risks of proceeding or declining such treatment. All alternatives regarding materials and techniques and the possible referral within or outside the practice will be presented to the patient and we will ensure that all information has been understood and explored fully with the patient in appropriate language and using suitable visual aids (if needed). A note of these discussions will be recorded in the patient’s records.
Our patients are always given the opportunity to consider all options and can be provided with written descriptions of these along with details of cooperative actions required on their part and any anticipated payment terms or conditions.
We will always support patients to ask questions or seek alternative opinions in order to arrive at a balanced judgment of whether to proceed with treatment proposed. It is our policy never to make our patients feel pressurised into accepting treatment and to give them time to consider the treatment options available to them.
We recognise that a patient can give or remove consent at any time. All patients will be provided with full information at all times to ensure that consent continues to be valid. Should circumstances change during a procedure as a result of new information or clinical findings, renewed consent will be sought from the patient.
In some circumstances specific consent may be required, for example treatment under sedation. We recognise that this specific consent relates only to the sedation aspect of treatment and not to any other treatment procedures undertaken.
We recognise that the context and circumstances under which consent is obtained are extremely important and we undertake to ensure that all patients can be considered to:
• be competent to take the particular decision
• have received sufficient information to take it
• not be acting under duress
For consent to be valid it must be specific, informed and normally be given by the patient or a parent or guardian (if the patient is under 16 and is unable to give valid consent).
We are fully aware of Gillick competence as the standard test used to assess an under 16-year olds’ competence to consent to medical treatment. Capacity to consent necessitates being able to understand, believe and retain the information supplied.
Consent can take many different forms, ranging from the active request by a patient for a particular treatment (which may or may not be appropriate or available) to the passive acceptance of a health professional’s advice. In all cases full details of the alternatives discussed and all investigations and potential risks identified with treatment options will be recorded in the patient records. Correspondence, referrals and detailed treatment plans will also be recorded in the patient record.
Mental capacity act
Some patients may for reason of mental incapacity or illness, be unable to give valid consent due to a lack of understanding of the nature or consequences of treatment. In this situation we have a duty to act in the best interests of the patient and to seek a second opinion when necessary, remembering the patients’ rights to confidentiality.
The Mental Capacity Act 2005 and the Mental Capacity (Amendment) Act 2019 is designed to protect people who can’t make decisions for themselves or lack the mental capacity to do so. This could be due to a mental health condition, a severe learning difficulty, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident.
The Liberty Protection Safeguards provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and lack the mental capacity to consent to the arrangements.
The purpose of the act is:
• To allow adults to make as many decisions as they can for themselves
• To enable adults to make advance decisions about whether they would like future medical treatment
• To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date
• To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time
• To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted
• To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests
• To provide clarity and safeguards around research in relation to those who lack capacity
About mental capacity
Under the Mental Capacity Act a person is presumed to make their own decisions “unless all practical steps to help him (or her) to make a decision have been taken without success”.
Every person should be presumed to be able to make their own decisions. You can only take a decision for someone else if all practical steps to help them to make a decision have been taken without success.
Incapacity is not based on the ability to make a wise or sensible decision.
How 'mental incapacity' is determined
To determine incapacity, you will need to consider whether the person you’re looking after is able to understand the particular issue that they’re making a decision about.
You need to consider if they have:
• an impairment or disturbance in the functioning of the mind or brain, and
• an inability to make decisions.
A person is unable to make a decision if they cannot:
• understand the information relevant to the decision
• retain that information
• use or weigh that information as part of the process of making the decision, or
• communicate the decision
Making decisions for someone
If, having taken all practical steps to assist someone, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests.You must also consider whether there’s another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle).
Best interests
The Mental Capacity Act sets out a checklist of things to consider when deciding what’s in a person’s best interests. You should:
• Not make assumptions on the basis of age, appearance, condition or behaviour
• Consider all the relevant circumstances
• Consider whether or when the person will have capacity to make the decision
• Support the person’s participation in any acts or decisions made for them
• Not make a decision about life-sustaining treatment “motivated by a desire to bring about his (or her) death”
• Consider the person’s expressed wishes and feelings, beliefs and values
• Take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf
In situations such as this we will hold best interest meetings with the patient’s next of kin, Independent Mental Capacity Advocate or where patients are detained under the Mental Health Act 1983 by reference to the Court of Protection. Patient records will be completed indicating how consent has been obtained.
