Patients are competent if they pass the following 3 components:
- understand the information given to them
- remember/retain the information given to them about the treatment
- use that information to decide whether or not to give their consent to the treatment proposed
- Information about anaesthesia, preferably in the form of a patient-friendly leaflet, should be provided to patients undergoing elective surgery before they meet their anaesthetist.
- The anaesthetic room immediately before induction is not an acceptable place or time to provide elective patients with new information other than in exceptional circumstances.
- The amount and nature of information that should be disclosed to the patient should be determined by the question: “What would this patient regard as relevant when coming to a decision about which of the available options to accept?”
- Patients must understand what they are consenting to - anaesthetists should tell the patient:
• what procedures they intend to do, and why they intend to do them
• what the significant, foreseeable risks of these procedures are, and what the significant, foreseeable consequences of these risks might be.
- Information should be provided about:
• generally what may be expected as part of the proposed anaesthetic technique. For example, fasting, the administration and effects of premedication, transfer from the
ward to the anaesthetic room, cannula insertion, non-invasive monitoring, induction of general and/or local anaesthetic, monitoring throughout surgery by the anaesthetist, transfer to a recovery area, and return to the ward. Intra-operative and postoperative analgesia, fluids and antiemetic therapy should also be described
• postoperative recovery in a critical care environment (and what this might entail), where appropriate
• alternative anaesthetic techniques, where appropriate. Patients do not have to agree to the anaesthetist's preferred anaesthetic technique
• commonly occurring, 'expected' side-effects, such as nausea and vomiting, numbness after local anaesthetic techniques, suxamethonium pains and post dural puncture headache
• rare but serious complications such as awareness (with and without pain), nerve injury (for all forms of anaesthesia), disability (stroke, deafness and blindness) should be provided in written information, as should the very small risk of death.
It is good practice to include an estimate of the incidence of the risk. Anaesthetists must be prepared to discuss these risks at the pre-operative visit if the patient asks about them
• specific risks or complications that may be of increased significance to the patient, for example, the risk of vocal cord damage if the patient is a professional singer
• the increased risk from anaesthesia and surgery in relation to the patient’s medical history, nature of the surgery and urgency of the procedure. If possible, an estimate of the additional risk should be provided
• the risks and benefits of local and regional anaesthesia in comparison to other analgesic techniques
• the risk of intra-operative pain, and the need to convert to general anaesthesia, should a proposed local or regional technique be inadequate or ineffective. The risks and benefits of adjunctive sedation or general anaesthesia should be discussed
• the benefits and risks of associated procedures such as central venous catheterisation, where appropriate
• techniques of a sensitive nature, such as the insertion of an analgesic suppository.
- At the end of an explanation about a procedure, patients should be asked whether they have any questions; any such questions should be addressed fully and details recorded.
- Anaesthetists should record details of the elements of a discussion in the patient record, noting what risks, benefits and alternatives were explained.
- Sufficient time must be allowed for the process of consent to take place during the pre-operative visit.
- A separate formal consent form signed by the patient is not required for anaesthetic procedures that are done to facilitate another treatment or as part of an inter-related process.
- When planning to allow trainees or others to use an opportunity presented by a patient for training in practical procedures, the anaesthetist should make every effort to minimise risk and maximise benefits, and should consider alternative ways of achieving the same end. Specific consent for such procedures may or may not be
required depending on the circumstances.
- Adults should be presumed to have capacity to consent unless there is contrary evidence.
- Incapacity may be predictable (e.g. Alzheimer’s disease, Huntingdon’s dementia), permanent (e.g. perinatal brain damage or persistent vegetative state), or temporary (e.g.unconsciousness following intoxication, head injury, or during general anaesthesia).
- In the case of predictable incapacity, where their competence is likely to be lost through future illness, patients may choose to prepare an ‘Advance Decision’ (‘advance directive’, ‘living will’), stating which treatments they would accept and refuse, if needed.
- If a patient lacks capacity, practitioners must make a clear record of the grounds on which they have reached this decision, the treatment which will be undertaken, and how this treatment will be in the patient’s best interests. It is good practice – but not a legal requirement – to contact and seek the approval of relatives or others significant to the patient, but failure to do so should not compromise care in an emergency.
Guidance on consent for patients with a mental illness can be found in The Mental Capacity Act 2005.
• emphasises the fact that adults should, by default, be regarded as having capacity unless clearly incapable
• directs clinicians to use the minimum necessary intervention if acting in the best interests of an incapable adult
• encourages clinicians to try to reverse or minimise a temporary loss of capacity to enable patients to make decisions for themselves
• allows competent patients to appoint ‘Lasting Powers of Attorney’ (LPAs), permitting others to take decisions about healthcare and welfare on their behalf if they lose capacity in the future. LPAs need to be registered with the new Office of the Public Guardian before they become legally valid
• formalises the role of the ‘Advance Decision’ (formerly ‘advance directive’), which will become legally binding if the patient has lost capacity and the situation which he/she has anticipated then develops
• creates a Court of Protection, which can make judgments regarding treatment decisions in incapable adults, or appoint a Deputy to undertake such decisions
• directs bodies caring for patients to nominate Independent Mental Capacity Advocates.
The MCA places a duty upon carers to treat incapable patients in their best interests, to use the minimum necessary intervention when doing so, and to make efforts to reverse or minimise temporary incapacity to enable patients to make autonomous decisions.
The patient’s consent is not required for any medical treatment of the mental disorder from which the patient is suffering. However, the patient’s consent, or a second opinion, is required before the administration of electroconvulsive therapy (ECT).
When the patient is not capable of consenting, or refuses treatment, ECT can be given in an emergency if the authorised practitioner certifies the patient’s lack of capacity or refusal, and that the treatment is likely to alleviate, or prevent deterioration in, the patient’s condition. Licence to treat in this way would also extend to the use of general anaesthesia for the purpose of administering ECT.