- Implied consent – where no verbal or written consent has been given, but an action by the individual in question suggests their agreement. For example, if a patient offers their arm to have their blood pressure taken.
- Informed consent – requires an explicit understanding of all the relevant facts, including risks and available alternatives. Usually, information is provided in order to help the person to understand what is proposed and why. This type of consent is often associated with medical procedures in healthcare settings; it is also often formalised with a physical signature on a consent form.
Issues with informed consent
One of the major issues with consent in a modern context is that all too often, we do not read the associated information given to us in the terms and conditions (Ts&Cs). And this is not necessarily even our own fault – all too often Ts&Cs are written in very complicated language, and are not accessible to the vast majority of people.
If the Ts&Cs are not easily understood, then we must ask: are we really giving a valid form of consent?
There is also the further risk that these long and complicated consent forms get us into a habit of clicking accept without giving due consideration to whatever it is we might be agreeing to. As well as the danger that as a society, we come to presume consent when really we should be making more efforts to ensure that information is fully understood – both by ourselves, and by those under our care.
Under the Equality Act (2010), information should be provided in a manner that is accessible to all. This point is also made within the five core principles of the Mental Capacity Act (2005), which tell us that capacity should be supported to enable capacity. At the very minimum then, content should be explained in a clear and accessible manner, with the format of information adjusted to meet the individual’s needs – including discussing the information verbally, if required.
Of course, the Mental Capacity Act also states that we should presume capacity in the first instance. It is therefore the responsibility of the person gaining consent to determine if this consent is valid (i.e. that they have the capacity to make the decision to give their consent).
If there is a ‘reasonable belief’ that a person may not be able to give informed consent for a specific decision or action, then it is the duty and responsibility of the person supporting them to assess their capacity and/or request an independent assessment if required.
While mental capacity assessments are perhaps most commonly used in health and care settings, they are also equally relevant and necessary to protect a person’s rights in settings outside of healthcare. These can include anything from consenting to financial agreements (such as to set up a mortgage or sell one’s home), to marriage, litigation, or writing a Will.
We must remember therefore that it is everyone’s responsibility to be aware of rights around consent and capacity. If you are unsure of anything, then ask questions and seek training or support from qualified professionals to ensure a person’s rights are upheld.