Obtaining valid consent is a vital component of the work you do as a doctor. There are numerous ethical, practical, medicolegal and legislative issues that relate to consent, and it is a complex process to do correctly. CHS has a Standard Operating Procedure (SOP) regarding the process of consent and this is included in the yellow box below.
Please see the two below boxes regarding the general concepts of consent (taken from the SOP) and the specific details relating to the process of consent as a PGY1 - 2. The bolded areas are of particular importance to you.
As JMOs you are not in a position to obtain informed consent for surgical/interventional procedures as you would not be in a position to be able to adequately answer most queries related to a specialist procedure as a PGY1 - 2 doctor. As a general rule, JMOs should not be undertaking formal consent processes within Canberra Health Services or seconded environments.
Canberra Health Services (CHS) staff must obtain valid and informed consent from a person or their legal guardian or other substitute decision maker before commencing any clinical activity, treatment or procedure.
Obtaining consent from a person before treating them is an important part of communication in shared decision-making. It is not simply about getting a form signed. The context and conversation are both important.
Australian law and health care ethics recognises that people have the right to decide whether or not they wish to receive health care treatment and to change their mind. If a doctor or other clinician touches someone or carries out a procedure without a person’s permission then the clinician may have committed a trespass to the person (such as assault or battery in civil law) or even a criminal offence. There is a limited exception to this, where a person cannot consent and emergency treatment is necessary to treat a serious and imminent threat to their life or health. This might occur if someone is unconscious.
Consent is often not a single act. It is an integral and often repeated requirement in an on-going care relationship between a clinician and a patient. For example, when part of the treatment which a person has agreed to is to be changed, because their situation changes, then new consent for the changed treatment should be sought. A single signed form does not discharge this ongoing responsibility. All conversations about treatments to be provided to a patient need to be documented on their health care record.
‘Valid’ consent means that:
The person providing consent has the capacity to make treatment/procedure decisions (and in the case of a substitute decision maker, has the legal authority to do so)
Consent provided by the person must be free and voluntary
Consent must relate to the specific clinical activity, treatment or procedure and must be reconfirmed if circumstances (e.g. the person’s diagnosis) changes
Consent is able to be withdrawn at any time. A decision must not be made under coercion or when someone has been administered medication that can affect their decision-making ability.
‘Informed’ consent means that:
The person is provided with information in a way that they can understand in accordance with requirements outlined in section 2
The person has the opportunity to ask questions and have those questions answered
Responsibility for Obtaining Consent as a JMO
The clinician that recommends treatment or advises a person to undergo treatment is responsible for providing sufficient and appropriate information and advice to that person (note: for surgical procedures this should be a Consultant or Registrar only).
Where a team of clinicians is involved in the care and treatment of a person, the responsibility for obtaining consent lies with the most senior clinician responsible for providing the treatment or performing the procedure to which the person is being asked to consent. When students are to be involved in any clinical activity, treatment or procedure, it is the supervisor’s responsibility to ensure appropriate consent is obtained. Refer to Clinical Placement procedure for more information.
The name and designation of the clinician responsible for obtaining consent must be clearly documented in the person’s health care record.
If a clinician delegates the task of gaining consent, they remain responsible for ensuring both that:
1) The clinician delegated the task:
is able to do so within their scope of practice and is competent to undertake the task, and
understands and is capable of informing the person of all relevant information including the risks and benefits (as a JMO, you are not in a position to do this part), and
the consent documentation is properly completed.
2) Any clinician that has been delegated to perform the consent task must be aware that they have legal and professional responsibilities to:
provide all necessary and proper information to the person on the same basis required of the clinician from whom the delegation came
ensure the person can ask any questions they may have in considering their decision
record the patient’s decision to either consent or not consent to a specific treatment.
Delegated clinicians should therefore refuse to undertake the consent process if they do not consider they have sufficient skill or experience to meet these legal and professional responsibilities.
Refusal by a clinician to undertake the consent process on behalf of another person must be respected by the hospital/health service and senior clinician.