Gaining consent – It's a yes or no situation. Think again!

It is a general legal and ethical principle that informed and valid consent, freely given by a person with the capacity to make that decision independently, must be obtained before commencing an examination, starting treatment or physical investigation, or providing care.

This principle reflects the rights of a person to determine what happens to their own bodies or what shapes the care and support they receive. It is fundamental to good practice, and an explicitly required standard of behaviour and practice set out in The Code (NMC, 2018). Registered nurses who do not respect this principle may be liable to both legal action by the person in their care and action by the NMC.

Consent is not a simple yes/no answer in many situations. The legal context is ever evolving. Judicial reviews and rulings by the Supreme Court mean that the need for “informed consent” is a legal requirement – see Montgomery v Lanarkshire Health Board [2015] UKSC.

Informed consent means that sufficient evidence based information must be provided to the person to enable them to make a balanced and informed decision about their care and treatment. As well as a general explanation of the procedure there is also a duty to explain the risks inherent in the procedure and the risks inherent in refusing the procedure. Information must also be provided regarding alternatives to the proposed intervention. This will assist the person to make the decision to consent to, or refuse consent for a particular intervention, whilst respecting their right to autonomously decide what happens to them.  Failing to meet this legal duty can give rise to an action in negligence if the person is subsequently harmed. 

It is imperative that nurses understand their role around consent and what the specifics of valid, informed consent actually mean. It is also vital that nursing staff understand the intricacies of gaining consent with specific patient populations, such as children and young people, or those who may lack capacity to make a relevant decision independently. They must understand how to proceed should the situation not be straightforward, or if consent for examination, care, treatment or support is withheld. Nursing staff should refer to the RCN resource - Consent in NI – RCN Clinical Topic  which provides guidance for nursing staff in understanding their role and accountability in this area.