It goes without saying

MANY doctors rely on implied consent in their day-to-day practice, but be aware of its limitations.

WHEN a patient rolls up their sleeve and presents their arm for a blood pressure check or when they sit in the dental chair and open their mouth for a check-up, most practitioners would agree this demonstrates they are consenting to treatment.

The patient may not explicitly say the words, but their actions suggest they are happy for you to proceed. This is implied consent or “consent that is inferred from signs, actions, or facts, or by inaction or silence”. Without it (and similarly oral consent), many general medical and dental practices would likely grind to a halt under the burden of securing formal written consent for each and every treatment.

But while it serves a useful purpose, it has its limits and practitioners should not become complacent. MDDUS has dealt with a number of cases where doctors or dentists have proceeded with a course of treatment on the assumption the patient is in agreement, only to be subject to a complaint afterwards when the patient claims they had not in fact agreed.

The General Medical Council’s guidance Consent – patients and doctors making decisions together states: “Patients can give consent orally or in writing, or they may imply consent by complying with the proposed examination or treatment, for example, by rolling up their sleeve to have their blood pressure taken.

“In the case of minor or routine investigations or treatments, if you are satisfied that the patient understands what you propose to do and why, it is usually enough to have oral or implied consent.”

In Principles of patient consent, the General Dental Council advises dentists that “giving and getting consent is a process, not a one-off event,” that “should be part of an ongoing discussion between you and the patient.” When circumstances change, i.e. if agreed costs are likely to increase, then the patient must be asked to consent to any further treatment/extra costs.

The most important element about implied consent (and similarly, oral consent) is that it is appropriate only in relation to minor or routine investigations or treatments – i.e. a basic dental check-up or blood pressure check. For anything that involves higher risk you must get written consent to ensure that everyone involved understands what was explained and agreed. By law you must get written consent for certain treatments, such as fertility treatment, and you must follow the laws and codes of practice that govern these situations.

The most important step in any consenting process is to be satisfied that the patient has all the information they need and that they understand the implications of what is proposed. The GMC’s Consent advises: “Before accepting a patient’s consent, you must consider whether they have been given the information they want or need, and how well they understand the details and implications of what is proposed. This is more important than how their consent is expressed or recorded.”

It is important to be as clear as possible and not to assume that simply because the patient sits in the dental chair, for example, that you have free rein to carry out any treatment you believe is necessary. Obtaining consent is part of managing the patient’s expectations within a consultation. For doctors, asking a question such as “Do you mind if I examine your ears?” is both reassuring to the patient and a part of ensuring oral and implied consent. Remember that further consent is always required for more invasive procedures.

The crucial question is whether the person understands the procedure that is being proposed and can weight up the relevant information surrounding it. Any question over a patient’s mental capacity further complicates the issue and there is more detailed advice available in the MDDUS Essential guide to consent.

Implied consent does not just apply to medical or dental treatment but also in local clinical audits and when sharing information within a healthcare team or with others providing care. Where a patient can’t be informed about the disclosure of information, such as in an emergency, then only pass on relevant information to those providing care and inform the patient once they are able to understand.

The GMC’s guidance Confidentiality states: “Most patients understand and accept that information must be shared within the healthcare team in order to provide their care.

“You should make sure information is readily available to patients explaining that, unless they object, personal information about them will be shared within the healthcare team, including administrative and other staff who support the provision of their care. This information can be provided in leaflets, posters, on websites, and face to face and should be tailored to patients’ identified needs as far as practicable.”

ACTION: Oral or implied consent is suitable for minor or routine investigations or treatments only. For anything that involves higher risk you must get written consent.