Trust Board Febuary 2010 - Sandwell & West Birmingham Hospitals

SWBTB (2/10) 037 (a)
including the likelihood of its success and any alternatives to it. Permission given under any unfair or
undue pressure is not consent.
For consent to be valid the patient must:
• Have capacity to make a particular decision
• Have received sufficient information to consider and make the decision
• Not be acting or making a decision under duress
Where possible consent should be taken in advance of the procedure (ie in a pre-operative
assessment clinic) so the patient has time to consider the options given and make an informed
decision.
Vicarious Liability
Vicarious liability is a legal concept that means a party may be held responsible for injury or damage
when in reality they were not actively involved in the incident. Parties that may be charged with
vicarious liability are generally in a supervisory role over the person or parties personally responsible
for the injury/damage. Vicarious liability implies that the employer is responsible for the acts of its
employees, where employees are acting within the Trust’s terms and conditions/policies).
Best Interests
An act done or decision made, under the Mental Capacity Act 2005, for, or on behalf of, a person
who lacks capacity or made in his/her best interests. Best interests are wider than medical interests
and include the patient’s wishes, beliefs of the patient when competent, including general, spiritual
and religious wellbeing. Healthcare professionals must consider all the relevant circumstances
relating to the decision in question; these are listed in the Reference Guide to consent for
examination or treatment, second edition.
Mental Capacity
The Mental Capacity Act 2005 defines a person who lacks capacity as a person who is unable to make
a decision for themselves because of an impairment or disturbance of the functioning of the mind or
brain. A person must be assumed to have capacity unless it is established that they lack capacity: if
there is doubt, the health professional must assess the capacity of the patient to take the decision in
question, recording the assessment and conclusions drawn from it in the patient’s notes.
Delegated Consent
Valid consent to treatment involves a patient agreement to the intervention following a discussion
and understanding of the risks and benefits of the procedure that is being undertaken. The
Consultant carrying out the procedure is ultimately responsible for ensuring that the patient is
genuinely consenting to what is proposed.
Guidance from the Department of Health stipulates that consent is sought by a professional
competent to do so because they either carry out the procedure themselves or have received
specialist training in advising about the procedure, have been assessed by the organisation and are
aware of their own knowledge limitations and are subject to audit. The taking of consent may
therefore be delegated to a member of staff who is not capable of performing the procedure but is
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