Patient consent – types
Patients have the ethical and legal right to make informed decisions about their health. Informed consent is the basis for many Privacy Act exceptions, permitting collection, use and disclosure.
To minimise the risk of legal issues, GPs must obtain a patient’s informed consent. It might be reasonable to consider an attending and willing patient as consenting, however, it is recommended to obtain the patient’s express consent (eg by a signed form or as a note on the patient record in your clinical information system).
The requirement to obtain informed consent applies to any research being conducted by a practice using identified patient data.2
Informed consent
To provide informed consent, patients must have:
- sufficient information about their own healthcare
- the ability to make appropriate decisions.
The information a patient requires to provide informed consent depends on the situation. For example, this might include details on how their information will be used, who will have access to their information, and any potential benefits or risks related to providing information, referrals or treatment options. Patients should be informed if it is likely their information will be sent outside of Australia and if so, to where.
GPs are responsible for determining if a patient is capable of giving informed consent (refer to module on Competence, capacity and maturity to provide consent).
Inferred or express consent
Verbal or written consent might be:
- express – when a patient signs or clearly expresses their agreement
- inferred (or ‘implied’) – where the circumstances imply the patient has consented.
Express consent should be sought wherever practical and/or where significant clinical risk is possible (eg before a procedure or surgery). A signed form is an example of express consent, but an informed and well-documented discussion with a patient might equally comply with this requirement.
Inferred consent should only be used when express consent cannot be obtained. GPs must not overestimate the scope of inferred consent. For example, it is reasonable to infer a patient’s consent to their records being collected and used during repeat consultations. However, this consent would not necessarily extend to the disclosure of that information to third parties; for example, sharing health summaries within referral letters to other medical professionals.
GPs should also be wary of taking silence or a lack of objection as an indicator of consent; if there is any doubt, GPs should obtain express consent.
It is recommended consent conversations are thoroughly documented, within a patient’s medical record. Problems might arise if a patient does not understand the potential uses of their health information. Where GPs must establish implied consent, comprehensive consultation notes are essential. These notes should include the information provided, the nature of the discussion and the patient’s response.
Withheld consent
GPs should be careful when treating patients who refuse to provide certain health information or withhold consent for healthcare.
When providing procedures or care that has a possibility of risk associated with it, this must be clearly explained along with the challenges of not providing the necessary health information or consent.
In these circumstances, it is recommended GPs make detailed notes to document the discussion, the patient’s decision, and the resulting outcome. In some cases, this outcome might conflict with the GP’s duty of care and therefore comprehensive consultation notes are valuable.
It is recommended consent conversations are thoroughly documented, within a patient’s medical record. Problems might arise if a patient does not understand the potential uses of their health information. Where GPs must establish implied consent, comprehensive consultation notes are essential. These notes should include the information provided, the nature of the discussion and the patient’s response.
