aReference Guide to Consent for Examination and Treatment' 2001 and new model consent forms. The Government in their response to the Bristol Inquiry Report have stated that they endorse this new guidance and confirm the principle that consent is a process and that the principle of consent is applicable to all clinical procedures ± not simply to surgery. Moreover thatpatients should be
given sufficient information about what is to take place ,the risks ,the uncertainties
and possible negative consequences of the proposed treatment ,about any alter-
natives and about the likely outcome ,to enable them to make a choice as to how to
proceed.' Learning from Bristol: The Department of Health's Response to the
Report of the Public Inquiry into children's heart surgery at Bristol Royal Infirmary
1984±1995 Cm 5363 ?2002) ?pp. 139±140). Such an approach suggests that
failure to answer patients' questions today is unlikely to be supported by a
responsible body of professional practice. Today ,it is submitted ,a nurse should
consider very carefully indeed before she decides to withhold information from a
questioning patient ,and any refusal will require very clear justification [64].
Causation
Even if a patient can establish that she should have been given more information,
that by itself is not sufficient for an action in negligence to succeed ?Chapter 6). She
must go on to show that the failure to provide information caused the harm suffered
by the patient. The present test used by the courts is subjective ± would the patient
have chosen differently had she been given more information? [65] The patient may
find it very difficult to prove causation since in many cases the patient would have
taken the decision to choose the treatment even if provided with more information.
7.3 Conflicts in disclosure
There has been considerable debate in nursing surrounding the concept of the
nurse as patient advocate [66]. One part of the role of the nurse as advocate is in
facilitating her patients to exercise their rights. The ability to make a free choice
regarding one's treatment is perhaps one of the patient's most important rights. If
the nurse is acting as a member of a health care team and she believes that the
information given by a doctor in the team to a patient is insufficient ,what should she
do? Does the law require her to advocate for her patient? There is no express
recognition in English law at present of the role of the nurse as patient advocate ,but
there may be situations in which she would be held liable for failure to disclose.
In their Guidelines for Professional Practice ,the UKCC states that:
`Sometimes you may not be responsible for obtaining the patient's or client's
consent as ,although you are caring for the patient or client ,you would not
actually be carrying out the procedure. However ,you are often best placed to
know about the emotions ,concerns and views of the patient or client and may
be best able to judge what information is needed so that it is understood. With
this in mind you should tell the other members of the health care team if you are
concerned about the patient's or client's understanding of the procedure or
treatment ,for example ,due to language difficulties.'
116 Nursing Law and Ethics