The Royal Marsden Hospital Manual of Clinical Nursing Procedures - Lisa Dougherty [21]
For consent to be valid, it must be given voluntarily by a competent person who has been appropriately informed and who has the capacity to consent to the intervention in question (NMC 2008c). This will be the patient or someone authorized to do so under a Lasting Power of Attorney (LPA) or someone who has the authority to make treatment decisions as a court-appointed deputy (DH 2009).
The validity of consent does not depend on a signature on a form. Written consent merely serves as evidence of consent. Although completion of a consent form is in most cases not a legal requirement, the use of such forms is good practice where an intervention such as surgery is to be undertaken (DH 2009).
If there is any doubt about the person’s capacity to make a decision about consent, the nurse should determine whether or not the person has the capacity to consent to the intervention and that they have sufficient information to be able to make an informed decision (DH 2009). This should be done before the person is asked to sign the form. Documentation is necessary and the nurse should record all discussions relating to consent, details of the assessment of capacity, and the conclusion reached, in the patient’s notes (NMC 2008c).
Obtaining consent is a process and not a one-off event (NMC 2008c). Usually the person undertaking the procedure should be the person seeking to obtain consent. There may be situations when a nurse has been asked to seek consent on behalf of other staff. Providing the nurse has had training for that specific area, they may seek to obtain consent (NMC 2008c).
As part of the nursing assessment, the nurse needs to establish if the person is able to read or write. If they are unable, they may be able to make their mark on the form to indicate consent. In this instance, it would be good practice for the mark to be witnessed by a person other than the clinician seeking consent, and for the fact that the person has chosen to make their mark in this way to be recorded in the case notes (DH 2009). The person can direct someone to sign the form on their behalf, but there is no legal requirement for them to do so. If consent has been given validly, the lack of a completed form is no bar to treatment, but a form can be important evidence of such consent (DH 2009).
Consent may be expressed by a person verbally, in writing or by implying (NMC 2008c); an example of implied consent would be where a person, after receiving appropriate information, holds out an arm for their blood pressure to be taken. The nurse should ensure that the person has understood what examination or treatment is intended, and why, for such consent to be valid (DH 2009). It is good practice to obtain written consent for any significant procedure, such as a surgical operation or when the person participates in a research project or a video recording (NMC 2008c).
A competent adult may refuse to consent to treatment or care and nurses must respect that refusal (NMC 2008c).
Mental capacity
The Mental Capacity Act 2005 defines a person who lacks capacity as one who is unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain. This can be temporary or permanent (DH 2009). Every adult must be presumed to have the mental capacity to consent or refuse treatment (NMC 2008c).
An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general (DH 2009). A person is unable to make a decision if they cannot do one or more of the following things:
understand the information given to them that is relevant to the decision
retain that information long enough to be able to make the decision
use or weigh up the information as part of the decision-making process
communicate their decision – this could be by talking or using sign language and includes simple muscle movements such as blinking an eye or squeezing a hand.
(DH 2009)
Where a person lacks the capacity to make a decision for