Common consent questions: a guide for consultants

If you are a consultant, you may ask another member of the treating team to conduct parts of the consent process. You may also supervise a doctor in training or another clinician who will perform all or part of the procedure.

This commonly occurs in hospitals, where consultants ask interns, resident medical officers (RMOs) or registrars to obtain consent. It can also arise in settings such as radiology, where patients may receive written information in advance and a nurse, technologist or another doctor may support the consent discussion.

Members often contact Avant with questions about delegating the consent process, their responsibilities as the consultant and what they need to check before treatment proceeds.

We asked Avant’s medico-legal experts to answer some of these common questions.

How should I address the patient’s capacity to consent?

A patient must have capacity to be able to consent to treatment. Capacity is specific to the decision and may fluctuate over time.

Before providing treatment, you need to be satisfied that the patient has capacity to make the decision. You can presume an adult patient has capacity.

However, situations may arise which cause you or another member of the team to question this. You then need to assess whether the patient can understand, retain and weigh the relevant information and communicate a decision.

Document what prompted the concern, the steps you’ve taken to assess the patient and the basis for your conclusion.

Patients with limited capacity may be able to consent with support, so ensure you explore this with the patient.

If the patient does not have capacity, check for an applicable advance care directive and identify the legally authorised substitute decision-maker. Requirements differ between states and territories. See Avant’s Capacity: the essentials and Substitute decision-makers.

Can I ask someone else to obtain consent?

You can delegate some or all of the consent discussion to another appropriately skilled clinician, provided they have sufficient knowledge, skill and information to conduct it effectively. Delegating the consent discussion does not remove your responsibility to ensure the patient has provided valid informed consent before treatment proceeds. Before delegating, make sure the person you’re delegating to understands:

• the nature and purpose of the procedure
• its expected benefits
• the available alternatives, including not proceeding
• the general and material risks
• relevant information about the patient
• who will perform the procedure and any supervision arrangements.

You should also make sure they know how to contact you or another experienced clinician if the patient raises a question they cannot answer.

Check any hospital, health service or practice policies. These may specify who can undertake the consent process for particular procedures.

What should I tell someone who is obtaining consent on my behalf?

Give them enough information to discuss the procedure accurately and respond to the questions the patient is likely to ask.

Encourage them to tell you if a patient raised questions they couldn’t answer. They should pause the process rather than guess or provide unclear responses. You or another appropriately experienced clinician should then speak with the patient to continue the consent discussion.

Make it clear that they can tell you if they do not feel comfortable conducting the consent discussion. They should not feel pressured to proceed or obtain a signature.

Advise them to keep good medical records about the consent discussion and any resources provided to the patient.

Someone else obtained consent. What should I check before performing the procedure?

As the doctor performing the procedure, you need to be satisfied that the patient has provided valid and informed consent.

Review the consent form and clinical record, but do not rely on the signature alone. Speak with the patient and confirm that they:

• understand the procedure
• want to proceed
• know who will perform it
• have had an opportunity to ask questions and to have had their questions answered.

Check that the earlier discussion addressed any material risks relevant to the patient. If the notes or the patient’s answers suggest that the discussion was incomplete, provide the missing information and document your further discussion.

If you cannot resolve the uncertainty, delay the procedure where clinically appropriate until you can confirm valid consent.

Can I rely on written information?

You can use written information to support the consent process, for example information sheets or links provided before the patient’s appointment. However, written information does not replace a conversation.

For a familiar, standardised procedure, you may only need a relatively brief conversation. You will generally need a more detailed discussion for a complex, invasive or elective procedure.

Be sure to document the version of any information sheet, pamphlet or booklet provided to the patient or save a copy to the clinical record. In claims and complaints it can very difficult to establish what information a patient received if the material is not retained or clearly identified in the record.

What if another doctor may perform the procedure?

Tell the patient if another doctor may perform all or part of the procedure.

This includes pooled public hospital lists and procedures that a registrar may perform under your supervision. It may be important to the patient to consider the identity, role, qualifications or experience of the proceduralist when making their decision.

Explain to the patient how the arrangement works and what supervision you will provide. Avoid creating an expectation that you will personally perform the procedure if someone else may undertake some or all of it.

Document what you or another member of the team told the patient and what they agreed to.

What should I document?

Document more than “risks discussed”. The level of detail required will depend on the type of procedure being performed.

Document the proposed procedure, its purpose, expected benefits, alternatives and the general and material risks discussed. Include patient-specific considerations, questions asked and answers provided. Where written information was supplied, document what material was provided and where it is stored.

Also document who conducted the consent discussion, who may perform the procedure and any supervision arrangements.

If you delegate part of the process, make sure the clinical record adequately captures the discussion. Consent is a communication process, not simply a signed form. Good documentation helps demonstrate what information was discussed, what questions were asked and how the patient’s decision was reached.

Further resources

Avant factsheet - Consent in care: the essentials