About this guidance
This guidance, Consent: patients and doctors making decisions together, replaces the booklet Seeking patients’ consent: the ethical considerations (1998). It expands on the guidance in Medical practice, which requires doctors to be satisfied that they have consent from a patient, or other valid authority, before undertaking any examination or investigation, providing treatment, or involving patients in teaching and research.
This guidance sets out the principles on which good clinical decisions should be based. It provides a framework for good practice that covers the various situations that doctors may face in the course of their work. The guidance concentrates on decision-making in the context of investigations or treatment; but the principles apply more widely, including decisions on taking part in research, and decisions at the end of life. More detailed advice on these matters will be provided in separate guidance.
This guidance does not cover doctors’ responsibilities to protect or disclose personal information about patients. See our publication, Confidentiality: good practice in handling patient information (2017).
As the law relating to decision-making and consent, particularly for patients who lack capacity, varies across the UK, doctors need to understand the law as it applies where they work (see paragraphs 62 - 63). This guidance takes account of, and is consistent with, current law across the UK. The legal annex gives more detail about relevant common law and legislation, and links to further information.
Making decisions about treatment and care for patients who lack capacity is governed in England and Wales by the Mental Capacity Act 2005, and in Scotland by the Adults with Incapacity (Scotland) Act 2000. The legislation sets out the criteria and procedures to be followed in making decisions when patients lack capacity to make these decisions for themselves. It also grants legal authority to certain people to make decisions on behalf of patients who lack capacity.13 In Northern Ireland, there is currently no relevant primary legislation; and decision-making for patients without capacity is governed by the common law, which requires that decisions must be made in a patient’s best interests.14 There is more information about legislation and case law in the legal annex to this guidance.15
The guidance that follows is consistent with the law across the UK. It is important that you keep up to date with, and comply with, the laws and codes of practice that apply where you work. If you are unsure about how the law applies in a particular situation, you should consult your defence body or professional association, or seek independent legal advice.
How this guidance applies to you
This guidance is addressed to doctors, but may also help patients and the public understand what to expect of their doctors.
In this guidance the terms ‘you must’ and ‘you should’ are used in the following ways:
- ‘you must’ is used for an overriding duty or principle
- ‘you should’ is used when we are providing an explanation of how you will meet the overriding duty
- ‘you should’ is also used where the duty or principle will not apply in all situations or circumstances, or where there are factors outside your control that affect whether or how you can follow the guidance.
The guidance is not, and cannot be, exhaustive. So you should use your judgement to apply the principles it sets out to the situations you face in your own practice.
You must work in partnership with your patients. You should discuss with them their condition and treatment options in a way they can understand, and respect their right to make decisions about their care. You should see getting their consent as an important part of the process of discussion and decision-making, rather than as something that happens in isolation.
In deciding how much information to share with your patients you should take account of their wishes. The information you share should be in proportion to the nature of their condition, the complexity of the proposed investigation or treatment, and the seriousness of any potential side effects, complications or other risks.
Serious or persistent failure to follow this guidance will put your registration at risk. You must, therefore, be prepared to explain and justify your actions.