Consent forms and health practitioners - what do you need to know as a practice owner
Consent forms - what do you need to know about informed consent?
Since the pandemic in Australia, there has been a shift towards the desire to provide patients with more say and autonomy in their own treatment, which has highlighted a lack of understanding among some of our medical practice owner clients about the issue of informed consent and how it can be properly obtained. In order for a patient to make a well-informed decision on their treatment, they need appropriate information.
Requirements for obtaining informed consent
For consent to be valid, the patient must:
be competent to take the particular decision;
have received sufficient information to make a decision and
not be acting under duress.
The last point may be an issue if consent is obtained on the day of surgery. Most patients will have firmly decided to proceed before attending surgery. However, a minority may develop doubts upon learning about the procedure in more detail during the consent process. If these doubts arise on the day of surgery, the patient may feel under duress to proceed, as all the arrangements have been made. Therefore, it is recommended practices work through the informed consent process at the time of listing the procedure, when the risks and benefits can be explained and due care and time can be provided to ensure that the patient is comfortable to provide their consent. The patient is more likely to feel less pressure to proceed and, hence, will not be acting under duress.
How and when can consent be obtained?
By non-verbal communication: a person’s action or lack of action may clearly indicate their wishes (known as implied consent) or
By verbal communication: a person clearly and orally indicates that they consent to the treatment or in writing.
Consent should be obtained after discussion between the medical practitioner and the person and prior to the medical treatment being administered. If consent has been obtained sometime before a medical treatment is administered, it will remain valid, providing that the delay between a person giving consent and the treatment being administered has not led to a change in a person’s personal circumstances or the nature of the treatment being administered, such as to affect the original consent.
If there is evidence of a change in a person’s condition, decision-making capacity, social status or other circumstances, it is prudent to check with the person that their consent still applies.
Capacity
The patient must have the capacity to give consent. A person has decision-making capacity if they can:
understand the facts and choices involved
weigh up the consequences, and
communicate their decision.
Persons whose primary language is not English
If a person is unable to communicate adequately in English, the services of a professional interpreter should be offered at the time of:
a diagnosis of a person’s condition
the explanation of any proposed medical treatment/s and signing of the consent form
admission and taking of a person’s details
when specific post-operative advice is given, including at the time of discharge.
The use of a person’s family, friends, Substitute Decision-Maker or Person Responsible as interpreters may be inappropriate because of their lack of understanding and possible breach of confidentiality or conflict of interest. Where an interpreter is used, care must be taken to respect cultural customs that might be infringed when detailed explanations are provided about medical treatment.
The use of audio-visual information and leaflets can be useful and indeed are recommended. However, it is not sufficient to discharge the duty of explaining risks by simply giving out a leaflet. Additional information should be supplemental to, not a replacement, for verbal consent.
Persons who are of Aboriginal or Torres Strait Island Descent
Language barriers for Aboriginal people may result in requests for consent being misinterpreted. It is therefore suggested that, where possible, the assistance of an Aboriginal Health Professional or Aboriginal Interpreter be sought in obtaining consent.
Recording consent and documenting consent
It is proper practice for the health practitioner to document the patient’s consent to medical treatment in the medical records as well as having the patient complete and sign the consent to medical treatment form, including a Substitute Decision-Maker or Person Responsible. This will ensure there is no ambiguity as to whether the patient has consented to the medical treatment. Wherever possible, discussions between the health practitioner and the person should be documented in the person’s medical record, including the risks and consequences of proceeding with medical treatment and, specifically, any concerns raised by the person. Diagrams used to describe the medical treatment should be included in the person's medical record. If a person is provided with material, such as a drug information sheet or an educational video, a notation should be made in the medical record.
Consent and Refusal to Medical Treatment
A person of or over 16 years of age is, for the purposes of the Consent Act, able to consent or refuse medical treatment, including the withdrawal of life-sustaining measures and including in advance (only adults of or over 18 years of age can make an Advance Care Directive).
Withdrawal of consent
A person can amend or withdraw their consent at any time. Patients should be informed of their right to do so. A change in consent should be noted in the person’s medical record and on the consent form previously signed by the patient.
Are you unsure if your Consent Forms meet all of their legal requirements? Reach out to You Legal’s expert team today so we can review and update your consent forms to ensure their legal compliance.
Our team has extensive experience in providing legal advice and insights into best practices for running a medical practice. We have assisted many practices. To discuss how we can help you, contact our team here, and we will put you in touch with the best professional for your needs.