PI Brief Update

How Consent Can Fail - Dr Mark Burgin

28/05/25. Dr Mark Burgin explains the common reasons why the consent process goes wrong and offers a surprising solution.

Consent flows from a meeting of minds between the patient and doctor. In a busy health system where only what is measured has value there is a risk that minds may not meet. Traditional communication has increasingly been replaced with modern check lists. Note-taking has become data input and the human touch fades.

There are concerns about consent both from professionals in cases such as Montgomery and from patients. Doctors admit that they are unsure what consent involves beyond get the patient to sign a form. Some doctors will even argue that they do not have time to ‘do consent’.

Working in clinical negligence gives a critical perspective of the quality of consent. Patients often have multiple complaints about the doctor’s behaviour. Many of these issues would likely affect whether consent is valid. The following are examples of how any doctor might find their consent process being challenged.

There’s no other choice

Doctors will often present an option as if no other choices are available. Sometimes this is because the doctor has failed to consider private options. Most cases they have made a judgment and decided this is medically the best option. They can refuse to consider the patient’s circumstances and preferences.

The McCulloch ruling found that a doctor does not need discuss all the options. The Supreme court’s reasoning was that determining the options is matter for the individual doctor. They do not have to discuss any options that they do not consider to be reasonable for that patient.

Whether doctors can refuse to discuss an option that the patient have raised is unclear. In medicine there is usually a duty to consider both options that are offered and those that are not. A doctor should record why they have not offered a standard treatment in the records.

It won’t make a difference

The argument that a treatment will not work appears similar to a discussion of the risks and benefits of a treatment. The doctor may even start by agreeing that the treatment is available and other doctors are using it. The tone then changes and the doctor may use emotive words rather than logic to share their dislike of the treatment.

The doctor never quotes the actual benefits of the treatment and exaggerates the downside. Speaking to doctors at meetings they will often admit that they initially thought the treatment was promising. When something went wrong with a previous patient they changed their opinion and no longer recommend it.

There may be good reasons for the patient not to have the alternative treatment. The doctor is likely to be better with treatments that they are familiar with. The waiting lists may be longer or even the treatment would not work in that patient. Consent is sharing these thoughts and letting the patient make the choice.

I am following guidelines

Guidelines are widely used but they lack a key element. Guidelines do not override the responsibility to make appropriate decisions. The doctor must also consider the individual circumstances of the patient. Doctors who defer to a guideline are failing in their clinical responsibilities as one-size-fits-all is not appropriate in medical care.

 Guidelines can be useful but are not infallible. Being right 70% is the limit of any system and because humans are variable, often is lower. The consent process is not achieved by a doctor reading the guideline and telling the patient what they must do. Consent requires that the patient understands why they are being offered a treatment.

The gap between guidelines and consent is a common reason that patients feel railroaded into a treatment. Guidelines do not contain the reasoning for the decisions and are usually worded as mandates. Even where the guideline itself suggests that there is uncertainty the doctor may not share this with the patient.

It is not available

Many treatments are rationed and it is easier for the doctor to say that they are not available. The doctor will often go further and refuse to discuss the treatment at all even if the patient says that they are happy to go privately to obtain the treatment. This leaves the patient unable to determine the best treatment for them.

Doctors say that they are unhappy to discuss private treatments even when the same treatment is available on the NHS. They argue that such a discussion could be seen as an endorsement of the private provider. Rather than setting out each option with risks and benefits they decline to engage.

What doctors forget is that consent is an ongoing process that involves offering or refusing treatment. Legally there is no difference between acts of omission and commission. Often treatments are available but the procedure is complex. If the patient is refused a treatment in this way and suffers a complication then the doctor would be liable.

You don’t fit the criteria

Clinical criteria are written in guidelines and are used to avoid inappropriate interventions. Where this approach is different from ‘following guidelines’ and ‘not available’ is that criteria must be applied according to the protocol. Unlike a guideline if the patient does not fit the criteria they cannot have the intervention.

Applying criteria are complex and takes time, few doctors have memorised the protocol so they would need to go through each step. They would need to record each step of the process and explain any assumptions that they have made. If a doctor has followed the protocol fully they would be able to say that consent does not apply.

Occasionally records confirm that the protocol was followed and that a refusal to provide an intervention was reasonable. More often the records confirm that the clinical criteria could have been present and consent should have been applied. Excluding patients from interventions by clinical criteria should be a last resort.

The law says we can

Doctors have extensive powers granted by the law such as sectioning, DOLS and best interests. These powers come with heavy responsibilities and do not override the need for consent. For instance, a patient held under a section cannot be forced to have physical treatments. Some doctors will threaten to use legal powers if the patient does not agree.

Legal powers can appear to have been used as a quick fix to avoid the need to communicate with the patient. The records often lack any indication that the patient was involved in decisions in their care. This can extend to failure to provide a plan of ongoing care so the patient cannot engage effectively even if they want to.

Bolam restricts the power of a patient to challenge acts of commission and omission that fall outside normal practice. As long as the doctor can find an expert who agrees that there is a reasonable range of opinion the doctor is protected. This blanket protection means that consent may be based on poor quality information or influenced by threats.

You would be harmed by that information

Doctors are permitted to not share information that could harm the patient. Whilst this is not defined in practice this applies patients who have certain disabilities. For example, if a patient has emotional control problems then the doctor can decide withhold information. The resulting consent is likely to be limited.

There is a responsibility on the doctor to make reasonable adjustments for those with disabilities. Knowing what adjustments to make and having the time to make them are both problematic. Few doctors are disability trained and disability reports are rarely obtained in these circumstances. As the patient is not aware of the withheld information they cannot ask for it to be disclosed.

The records often include comments to confirm that there was a decision to withhold information from the patient. Unfortunately the approach is rarely effective as the information almost always is disclosed and the patient is then upset that they were not told. Rather than protecting the patient the doctor has caused a loss of trust and the patient found out in an inappropriate way.

We already checked that

It has been said that patients are experts in themselves and sometimes they get the right diagnosis before the doctor. There is a risk that the patient will ask for the right test and their concerns dismissed. Consent can be breached when the patient is told falsely that they have already the test. This can occur when the doctor wants the patient to accept a different intervention.

A similar problem occurs when the doctor is over reliant on a normal test result. Some tests are no better than chance at excluding serious illness. Consent is clearly invalid if it is based upon a false reassurance. Having fresh eyes on the case is one option but often communicating with the patient is enough.

Patients can be highly motivated to find out what went wrong and engage well with a discussion. They can ask excellent questions and help doctors who have forgotten important steps to address them. Meeting of minds can only occur when both sides listen to each other and are prepared to change.

Conclusions

Consent and contract have several similar features such as duress, meeting of minds, offer and acceptance and misrepresentation. The law of contract has important lessons for consent and may provide answers to the current difficulties. Case law on consent is unsatisfactory because it does not address the common issues in consent.

Most problems with consent are due to poor communication. Improving communication has long been an issue in healthcare but the evidence is that things are getting worse. Low morale, burn out, lack of time, pressure from micromanagement and IT all contribute to the problems. Lack of disability training and legal understanding are also important factors.

Patients to contact an expert for a second opinion report before making a decision. Having a written summary of the decision to be made, risks, benefits, options and alternatives can change the dynamic. The doctor may even realise that they have made an error. Importantly the expert would know the right questions to ask to check that nothing has been missed out.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is a Disability Analyst and is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 websites drmarkburgin.co.uk and gecko-alligator-babx.squarespace.com

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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