Common consent: a guide for doctors in training

How do I know whether the patient has capacity to consent?

Before seeking consent, you need to be satisfied that the patient has capacity to make the particular decision.

Capacity is specific to the decision and may change over time. A patient may have capacity to consent to a simple examination but not a complex procedure.

You can presume that an adult patient has capacity unless something causes you to question it. If you do have concerns, consider whether the patient can:

• understand the relevant information and consequences
• retain the information long enough to make the decision
• weigh the available options
• communicate their decision.

You do not need to undertake a formal capacity assessment for every routine consent. However, if capacity is uncertain, document what prompted your concern, how you assessed the patient and why you concluded that they did or did not have capacity.

If you remain unsure, speak with your supervisor before proceeding with the consent discussion or treatment. See Avant’s Capacity: the essentials for further guidance.

I’ve been asked to obtain consent for a procedure. What should I ask?

First, make sure you understand the procedure and have enough information about it to conduct the discussion properly. If you do not feel you have sufficient knowledge of the procedure, risks, alternatives or expected outcomes to answer the patient’s questions, discuss this with your supervisor before proceeding. You should be able to explain:

• what the procedure involves and why it has been recommended
• the expected benefits
• the available alternatives, including not proceeding
• the general and material risks, including risks that may be particularly significant to that patient
• who is likely to perform the procedure
• what supervision will be provided, where relevant.

It should be an interactive discussion, not simply a recitation of a list of risks. Use open questions to check the patient’s understanding. For example, ask:

• “What is your understanding of the procedure?”
• “What are you hoping the procedure will achieve?”
• “Is there anything about the procedure or its risks that particularly concerns you?”
• “What questions do you have?” 

Make sure you follow your hospital, health service or practice policies. These may specify who can obtain consent for particular treatments or procedures. 

What if the patient asks something I cannot answer?

Do not guess or provide answers that you do not know are correct.

Tell the patient that you need to confirm the information. Speak with the treating consultant or arrange for someone with further knowledge of the procedure to speak with the patient.

Any outstanding questions should be addressed before treatment proceeds and before you can be confident the patient has provided valid consent.

You should feel able to acknowledge the limits of your knowledge and escalate the question. Obtaining a signature on a consent form should never take priority over ensuring the patient understands what they are agreeing to.

What if I’m going to perform the procedure under supervision?

A patient can consent to another appropriately qualified doctor performing the procedure, provided someone has explained this possibility and the patient has agreed.

This commonly occurs in public hospitals that use pooled operating lists or in teaching hospitals where a registrar or another doctor in training may perform procedures (or part of a procedure) under supervision as part of their training. Do not assume the patient knows this.

Make sure the patient understands your role, the supervision you will receive and where relevant, your level of experience. This should take place during the consent discussion.

Avoid creating an expectation that a particular doctor will perform the procedure unless you know this will occur. Avant discusses this further in Court dismisses patient’s claim she did not consent to registrar performing surgery.

What should I document?

Avoid documenting only “risks discussed”.

Ensure the notes include information about:

• the procedure and its purpose
• the expected benefits and alternatives
• the general and material risk you discussed
• any patient-specific risks or concerns
• the patient’s questions and the answers provided
• any written information you gave the patient
• who conducted the discussion
• who may perform the procedure and any supervision arrangements.

If you assessed the patient’s capacity, document that assessment in detail.

A signed form can provide evidence that consent was obtained, but it does not replace clear documentation of what was discussed with the patient and how they reached their decision.

Further resources

Avant factsheet - Consent in care: the essentials