Chapter 7
Consent and the Capable
Adult Patient
A The Legal Perspective
Jean McHale
Obtaining the consent of a patient to treatment is a crucial part of health care
practice. It fosters the bond of trust between practitioner and patient by according
the patient respect for her autonomy of decision making. Obtaining consent before
undertaking treatment is also part of the health professional's legal obligation [1].
If treatment is given without consent she runs the risk of being sued for damages in
the civil law courts or prosecuted in criminal law.
The nurse has two main roles in the consent process. First ,when she is acting as
the primary carer ,providing the patient with treatment ,she has the task of
obtaining the patient's consent. The expansion in the role of the nurse means
increasingly that it is the nurse herself who will be taking on this role. Secondly,
even if a doctor obtains the patient's consent a patient may be confused or
uncertain about her treatment choice and may turn to the nurse for clarification.
When complying with her legal obligations in relation to consent to treatment the
registered nurse needs also to be aware of her professional ethical obligations
including her role as advocate for her patient. Here ,as in other areas of her
practice ,the nurse may find herself torn between what she believes are the obli-
gations required of her under the UKCC professional code and her obligations
under the contract of employment.
Consent to treatment is one area of health care practice in which the courts may
be invited to consider the application of the European Convention of Human
Rights [2] through the Human Rights Act 1998. Issues which concern consent to
treatment can be found in relation to the debates concerning many areas of health
care and this is reflected in many of the other chapters of this book [3]. This
chapter discusses consent to treatment and the competent adult patient. In section
one the general nature of consent in law and capacity to consent to treatment is
discussed. Section two considers the liability of the nurse in civil and in criminal
law if she fails to provide the patient with information regarding her treatment.
Section three examines the situation in which a nurse believes that the doctor has
provided her patient with insufficient information with which to make a treatment
decision. Some of the difficulties which can face the nurse in attempting to act as
an advocate for her patient are examined ,particularly in the context of inter-