Voluntary Agreement

Consent obtained by fraud or duress is not valid. A doctor must be satisfied that the patient is giving a free, voluntary agreement to the proposed investigation, procedure, or treatment.

Consent may then be given expressly or by implication. Express consent is given when the patient agrees in clear terms, verbally or in writing. A verbal consent is legitimate, but because disputes may arise about the nature and extent of the explanation and warnings about risks, often months or years after the event, it is strongly recommended that, except for minor matters, consent be recorded in written form. In the absence of a contemporaneous note of the discussions leading to the giving of consent, any disputed recollections will fall to be decided by a lengthy, expensive legal process. The matter then becomes one of evidence, with the likelihood that the patient's claimed "perfect recall" will be persuasive to the court in circumstances in which the doctor's truthful concession is that he or she has no clear recollection of what was said to this particular patient in one of hundreds of consultations undertaken.

A contemporaneous note should be made by the doctor of the explanation given to the patient and of warnings about risks and possible adverse outcomes. It is helpful to supplement but not to substitute the verbal explanation with a printed information leaflet or booklet about the procedure or treatment. The explanation should be given by the clinician who is to undertake the procedure—it is not acceptable to "send the nurse or junior hospital doctor" to "consent the patient."

For more complex and elective procedures, it is wise to give the patient some time to reflect on the advice and on the choices, offering to meet him or her again before a final decision is made and to respond to any interim questions that the patient might wish to pose. For simple procedures (e.g., taking blood pressure and performing a venepuncture), it may be sufficient for consent to be implied—by the patient proffering an arm for the purpose. However, in circumstances in which the procedure has a forensic rather than a therapeutic content and the doctor is not the patient's usual medical attendant but may be carrying out tasks that affect the liberty of the individual (e.g., as a forensic physician or as an assessor in a civil claim), it is prudent to err on the side of caution. If no assumptions are made by the doctor and express agreement is invariably sought from the patient—and documented contemporane-ously—there is less chance of misunderstandings and allegations of duress or of misleading the individual.

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