Consent: What Makes It Valid and Where Interns Get It Wrong

Consent is treated by many interns as a form to be completed. It is not. The form records a process, and if the process did not happen the form is worth nothing — legally, ethically, or practically.

At a glance

Capacity

A patient has capacity for a particular decision if they can understand the relevant information, retain it long enough to make the decision, weigh it, and communicate their choice. All four must be present, and they are assessed for that decision at that time.

Two consequences follow that interns commonly miss. First, capacity can fluctuate — a patient who is confused overnight may have capacity in the morning, and if the decision can wait, it should. Second, a patient may have capacity for a simple decision and not for a complex one, so “the patient lacks capacity” as a blanket statement in the notes is almost always wrong.

An unwise decision is not evidence of incapacity. A patient with capacity is entitled to refuse treatment for reasons that seem poor to you, and that refusal must be respected.

Sufficient information

The standard is what a reasonable patient in this patient’s position would want to know, not what a clinician thinks is worth mentioning. That includes what the procedure involves, why it is proposed, the benefits hoped for, the material risks, the alternatives including doing nothing, and what happens if they decline.

Material risk is the phrase to understand. A rare complication that would be catastrophic for this particular patient — a hand complication for a musician, a voice complication for a teacher — is material for them even if it is uncommon in general. That is why consent cannot be a script.

Voluntariness

The decision must be the patient’s own. Pressure can come from family, from institutions, and from clinicians without anyone intending it. Consenting a patient already on a trolley outside theatre, or in front of relatives who are answering for them, are both situations where voluntariness is compromised by the setting itself.

Where interns get it wrong

When to stop and escalate

• You are being asked to consent for something you cannot perform and have not been trained to consent for
• The patient asks a question you cannot answer accurately
• Capacity is uncertain or fluctuating
• The patient is refusing something you believe is important — this needs senior involvement, not persuasion by you
• There is a language barrier and no professional interpreter — family members should not interpret for consent
• The patient is a child, or an adult whose capacity is in question and who has no clear representative

Documenting it

Record what was discussed, including the specific risks named, the alternatives offered, the questions asked and how you answered them. Record that the patient had the opportunity to ask questions and to change their mind. If an interpreter was used, record who. If capacity was assessed, record the four elements rather than the conclusion alone.

Last-minute checklist

• Capacity: understand, retain, weigh, communicate — for this decision, now
• Information: procedure, benefits, material risks, alternatives, doing nothing
• Material risk judged for this patient, not in general
• Voluntary: no pressure from setting, family or clinician
• Taken by someone who could perform it or is trained to consent for it
• Professional interpreter, not a relative, where needed
• Documented as a conversation, not as a signature

References

• Your national medical council’s guidance on consent
• Your hospital’s consent policy
• National mental capacity legislation applicable in your jurisdiction