Consent is an expression of a patient's autonomy and right to choose what treatment is best for them. It is most important to remember that this is not always the treatment that doctors think is best.
- "From the legal perspective, the only difference between the surgeon and a mugger with a knife is the consent of the patient."1
Treating patients without their consent may leave doctors open to a Medical Council investigation, disciplinary investigation, clinical negligence claim, or, at worst, criminal charges.
For consent to be valid, three conditions must be met:
- the patient must have the capacity to give their consent (see our separate guide to capacity or more information)
- the patient must have been provided with enough information on which to base their decision, including details of risks involved
- the patient must give their consent voluntarily.
Consent is a process and not a one off event. It involves dialogue, plus supplementary information plus completion of consent form.
The Medical Council has provided advice on consent in its Guide to Professional Conduct and Ethics for Registered Medical Practitioners 2019. This includes, in appendix C, a list of the specific information doctors should consider giving to patients when seeking their consent for medical treatment. Some of this list includes:
- the diagnosis and prognosis
- options for further investigations before treatment
- details of the proposed treatment
- other options for treatment (including that of no treatment) including the risks and benefits of each and how these might affect the prognosis
- reminders of a patient's right to withdraw consent at any time (including during a procedure); and their right to seek a second opinion
HSE has published a National Consent Policy, which explains that a doctor is expected to provide the information that a reasonable person in the patient's position would expect to be told about the potential risks and benefits of a proposed procedure. It also says that patients should be given this information at a time and in a format that will maximise their ability to understand it.
The courts define 'material risk' as a risk to which a reasonable person in the patient's positon would attach significance2.
All of this means that doctors are required to adopt a patient-centred approach3 and tailor discussions to each individual patient when seeking their consent. For example, a rare side effect, if it were to materialise, might have a significant effect on one patient's life but a negligible effect on another. It would therefore be essential to explain this when seeking consent from the first patient but less so when seeking consent from the second.
Consent is only valid when it is given voluntarily, and doctors need to be aware that pressures on patients to provide consent can manifest in various ways. HSE's National Consent Policy refers to:
- duress: overt pressures or threats imposed by others including people involved in the patient's care or treatment
- undue influence: subtle pressures to consent to treatment including pressures stemming from religious beliefs.
The HSE policy advises that if there is evidence of either, the doctor should consider meeting the patient alone in order to discuss their treatment in private.
Last minute consent may not be valid due to factors like the pressure of imminent surgery, or the effects of medication/sedation.
Refusal of treatment
Giving consent goes hand in hand with the right to refuse treatment, which in Ireland is a constitutional right. This right includes the right to refuse treatment on any basis, including an irrational one, so long as the patient has capacity.
The Medical Council says in section 15 of its guidance that in such circumstances a doctor should “explain clearly to the patient the possible consequences of refusing treatment and, where possible, offer the patient a second medical opinion.”
When it may not be possible to obtain valid consent
The HSE policy says that only in life-threatening emergency situations, where treatment is immediately necessary to preserve life or health, and the patient lacks capacity or obtaining consent would unacceptably delay treatment, may a doctor treat without a patient's express consent.
The only other situation in which HSE says it may not be possible to obtain patient consent is in the small number of cases where a patient does not wish to receive information about their condition, prognosis or treatment options. The HSE policy says that such decisions should be respected if possible, but that basic information should be provided so that patients know what their treatment will involve.
Doctors should document in detail the patient's expressed wishes, and we would advise doctors wherever possible to consult with their colleagues and with the MDU before treating patients in such circumstances.
1 Informed consent and other fairy stories (1999), 7(2) Medical Law Review 103-4
2 Geoghegan v Harris  3 IR 536
3 Fitzpatrick v White  3 IR 551
This page was correct at publication on 08/03/2021. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.