PI Brief Update

What is Consent Anyway? - Dr Mark Burgin

27/05/26. Dr Mark Burgin argues that replacing the current understanding of consent as a transactional event by a disability informed, relational process known as Assisted Autonomy would provide a single universal legal basis for investigating issues.

Consent is complicated by the way the concepts have grown with different definitions and applications in specific situations. Consent when considered by a doctor has a different meaning to that during sexual relations. The foundational principles that consent must be voluntary, informed and given by a person with capacity are the same but doctors also have a duty to do good. An example of an inconsistency is the common situation where a doctor or a person relies upon implied consent.

Implied consent is given where a person holds out their arm for a blood test or follows the advice of a doctor. It may be more difficult to imply consent when the person giving the advice does not have a duty of care as they cannot rely upon being trusted. A person might argue that they did not give their consent to following that advice. This argument might be stronger if for instance there was a power difference and the person initially resisted the advice or felt manipulated.

Following this reasoning it could be argued that any interaction between two human beings could potentially be considered as a failure to consent or battery. There are rules to normal behaviour such as having a haircut or helping a disabled person who is struggling with their shopping. An action in court can only occur if there is expressed dissent. People who are given advice that they do not like must either not follow that advice or say that they do to allow the person to perform the action.

Current legal and clinical models of consent

Express consent is a written document signed by the person and should detail the information that has been given. If they are a general agreement to a process then the further consent would be required to do anything that is not implied. Often the document is insufficient as it does not consider benefits, risks, alternatives and refusal. Courts may consider that the person was already aware of those aspects and see them as implied in the general consent. For instance, if a person agrees to an examination then it would be implied that they would be examined physically although they could refuse to this examination. The concept that a person can withdraw consent at any time is limited by the implication that they continue to consent unless they expressly withdraw their consent.

The UK Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11) states that the legal standard for consent is informed consent. This is a high standard and imposes a legal duty that the patient is informed both of real (objective) risks and any risks that they may consider material (subjective). McCullough however states that the decision of reasonable alternatives is a matter of clinical judgement. It is unlikely that these standards will be applied in court to all interactions and may only apply to those with a duty of care in specific circumstances to avoid paradoxes.

The General Medical Council (GMC) in its 2020 guidance —Decision making and consent equates the reasonable doctor standard and the reasonable patient when considering whether a risk is material. The NHS has adopted the concept of benefits, risks, alternatives and no treatment as the standard for consent. This is a lower standard than Montgomery and is closer to McCullough by moving away from informed consent to appropriate consent. The motivation is likely to be avoiding the USA version of informed consent which fails to inform the patient by using large complex lawyer type consent books.

Statute law considers consent from a criminal point of view where the consent must be genuine and freely given. Section 74 of the Sexual Offences Act 2003 defines consent as occurring when a person "agrees by choice and has the freedom and capacity to make that choice". If a person lacks capacity then they cannot consent, coercion and threats can be duress which invalidates the consent as does deception. The role of fear, emotional blackmail and exploiting weakness in the freedom to choose is complex. Consent cannot be given for serious injury or death and Domestic Abuse Act 2021 removes the rough sex defence. In legal cases this focus on finding flaws in the consent makes the law clunky and illogical and fail to consider whether the person was acting reasonably.

Consent as a transaction

Coercion is defined as the negation of free will but free will exists on a spectrum. This black – white approach to coercion is inflexible and leads to an uncomfortable conclusion. In criminal cases consent must be indicated by actions and withdrawn by communication. It is not sufficient to say that you were thinking stop or that you regret the decision to agree later. This places the responsibility upon the person to clearly withdraw consent and puts no duty on the other person.

Proxy consent is important when the person lacks the capacity to make the decisions due to lack of maturity (Gillick competence) or disability. The court of protection becomes involved in difficult cases where hospitals wish to withdraw treatment against the wishes of parents. The Lasting Power of Attorney (LPA) is a way of recording the person’s wishes and understanding their views before they lose capacity but where the person never had capacity alternative approaches are required.

Simply because a person does not have capacity for a particular class of decisions does not mean that they should not be involved. This breaches their autonomy as involvement will normally be in their best interests and Section 4 of the MCA mandates looking at past and present wishes and feelings. The person needs to be involved but will require reasonable adjustments to ensure that their preferences are known. Involvement is not binary and the aim is to improve participation rather than simply identify their views so the length of any engagement is material.

Real world consent issues

An example of a real-world issue is a doctor who is doing a medical legal assessment and asks the person to take a painkiller so that they can assess the effectiveness of that treatment or because the person is in too much pain to continue the assessment. The level of consent required if their intention is a trial of treatment is high and they must explain this is part of the assessment. The person can explain that they are not happy to follow the advice on this basis. The level of consent if they are advising the drug in the person’s best interests to help them cope with their current pain is much less.

The person can after the event argue that they were tricked into taking the medication. They can argue that the failure to explain the reasons behind the advice and the pressure of legal proceedings caused duress and taking the drug was the tort of battery. They could broaden this argument even further for instance if their wife took the tablet out of the packaging, got a glass of water and helped the person take the medication that they were under duress. They were unable to say anything because they did not realise the true purpose of the medication.

There is a further difficulty if the person argues that they were not sufficiently involved in the consent process because they acquiesced to the request. They might say that they were too tired to properly consider what was being asked of them or they simply trusted what they were told even if at the time they refused meeting of minds. They can argue that the responsibility was then on the person with the duty of care to take steps such as providing more information or explicit consent. As the consent failure is subjective rather than objective the patient can argue that whatever was done was insufficient.

Logical conclusions of the current approach

Having different standards for consent and this duty to explain the precise motivation of the advice could potentially lead to bizarre outcomes. For instance, a person believes that they are agreeing to a surgeon with 10 years of experience will perform the surgery and it transpires that the surgeon has only performed this surgery for 5 years they could argue that the consent was invalid and they suffered wounding and grievous bodily harm because of a complication. Doctors would need to record every detail that a reasonable patient could find material including their training logs. 

In contract this issue is managed by a concept called representations where any statements that the professional makes to encourage the person to agree are considered part of the agreement. If the medical legal doctor states that their reason for advising the medication is due to the severity of the person’s pain then this would be the representation even if they have other reasons. There may be issues if the doctor was later found to be dishonest and was not motivated by the representation. The doctor would not have to give any reason and the responsibility would be on the person to enquire if they need a reason.

The current approach to these problems is to consider whether the doctor is a bad apple. This in turn leads to multiple jeopardy where the doctor is investigated by overlapping regulatory systems. Complaint systems, personal injury, internal regulation systems, GMC, CQC, ombudsmen, criminal courts and even coroners can all consider the same issue. The processes increasingly transform from logical fact finding to chaotic personal attacks where any inconsistency is considered to be deceit.

The meeting of minds (consensus ad idem) concept

An alternative understanding of consent is through the contractual concept of the meeting of minds. This is closer to how doctors consent patients in practice and arguably would provide clarity in criminal cases. Sexual relations should give rise to a duty of care to check that the other person is continuing to consent. Learning how to keep engaged with the other person during the process is a general good for society. The meeting of minds that should accompany the meeting of bodies reduces the risk of harm and improves the quality of the interaction and the health in relationships.

The law cannot protect people from their autonomous and regretted decisions, the basis of rights and responsibilities is legal capacity. The court could find unconscionable conduct for instance coercion, misrepresentation or implied deceit. The doctor could objectively demonstrate meeting of minds by checking what medication has already been taken, representing that the painkiller is necessary due to the severity of the pain, not helping the person unless asked, listening to any responses that the person say, recording the taking of the painkiller and monitoring for side effects.

Further objective evidence includes explicit statements of no treatment such as ‘I can continue the assessment without this medication, but it may be limited by your pain levels, and I will have to record those limitations in my report’. Splitting the dose to give half an hour to consider the decision before they consent to taking the other half of the medication. Using teach back asking the person to tell the doctor why they are suggesting taking the medication. Other representations might include that ‘the court will want to see what the effects of the medication have on’ the person’s symptoms.

Applying Meeting of Minds

The current thinking on consent appears to be siloed with different and contradictory approaches taken in different areas (crime, contract and clinical). The argument that a duty of care might arise when consent is required, that there should be a meeting of minds in consent and people have a duty not to lie does not appear controversial. The subjective limb of Montgomery supports the meeting of minds approach. The artificial separation of a professional’s duty of care and broader human relations has led to difficulties particularly in sex but also in many other areas.

Meeting of minds in any human relations leads to both rights and responsibilities. Both parties have a duty of care and should ask the questions that are material. Neither should feel that they cannot ask the questions nor lie if asked those questions. They should both share responsibility to keep the channels of communication open whether verbal, non-verbal or through actions. There will then be evidence to show that each party made reasonable efforts to communicate and that proper consent occurred.

This idea of consent as a shared responsibility with reciprocal duties transforms consent from a static event to one where autonomy is the prime target. As both parties have the responsibility to maintain communication the issue of disability arises. If one party has functional restrictions in communication then the other party must make reasonable adjustments. This could include reading non-verbal signs or stopping so the other party must take a positive action to continue.

Assisted Autonomy or Informed Consent?

The arguments against assisted autonomy through the meeting of minds includes the point that such a process is inherently subjective. Doctors do not have the time for this in every low complexity decision and having to take responsibility for decisions puts too high a cognitive load on people. The clear boundaries in the current system allows doctors to focus on treating patients and to be able to rely on a signature on a consent form.

The implications of the assisted autonomy approach to consent would be to move away from the rabbit hole of informed consent towards the aim of assisted autonomy. The duty to communicate would allow every word, pause, action and gesture to used as evidence of a meeting of minds. Consent could also be tailored to the situation and include what is reasonable when asking a person to take a painkiller, performing surgery or in human relations.

The current rules argue that detailed consent is required for any decision however small. The consent form is often found to be insufficient and courts consider the process. Informed consent has provided good legal outcomes but worse clinical outcomes. Assisted Autonomy would make consent a process that people build together respecting the other’s weaknesses and confirmed by evidence of reasonable efforts to communicate.

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 01226 761937 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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