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What is the law on patient consent?

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A patient gave consent to surgery during an outpatient appointment. Is this still valid when the patient is admitted for the operation?

The law does not set any time-scale for the validity of a form of consent signed by the patient. The form is, in fact, not the actual consent but evidence that the patient is consenting to a particular procedure at a given time.

The patient is entitled to change her or his mind. The law requires that a patient is mentally capable and understands the nature of the procedure, that the consent is voluntary and there is no coercion or inducement that has been of influence in obtaining the consent. Also, any significant information relating to the serious risk
of substantial harm must have been given to the patient.

In applying the law, the most important question is – what are the patient’s views at present? Although the patient has signed a form, rather than rely on this, it would be easy to check with the patient her or his current views. If the patient is still consenting to the surgery, then a note to the fact can be added to the form.

The note should specify the date on which that continuing consent was checked.

If there are worries of concern to the patient, then these can be discussed and resolved and again a note to the effect added to the form. The patient could be asked to put her or his name to that note.

It is, in law, possible to rely on a signed form of consent as being still operative, as long as it would appear to be reasonable that it is still valid. However, any lengthy delay between the form being signed and the treatment, any sign that the patient has concerns or might have changed her or his mind, or any other indication that reliance should not be placed on the written consent, should be followed up by discussions with the patient. In the case of doubt, check with the patient again.

The Kennedy Report, following the inquiry into the Bristol paediatric heart surgery, made significant recommendations in relation to obtaining consent.

Bridgit Dimond, MA, LLB, DASA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd

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