In the medical profession, consent has been termed ‘a moral and legal cornerstone of contemporary health care’, applicable to all clinical procedures (Farsides, 2007: 140). Every day in their professional practice, veterinary nurses (VNs) are likely to be involved, either directly or indirectly, with the process of obtaining consent from clients. Whether this consent is informed or not has numerous implications for the veterinary team. This review aims to explore what constitutes informed consent, before discussing the legal, ethical and professional issues relating to it and concludes with recommendations for best practice.
Defining ‘informed’ consent
The dictionary definition of ‘consent’ is ‘acceptance of, or agreement to, something proposed by another’ (Encarta, 2009). Therefore, in veterinary practice, simply put, consent equates to the client agreeing to a course of action proposed by a veterinary surgeon (VS). While all VNs will be familiar with the consent forms used in their practices, as evidence of such agreement, is this sufficient?
For consent to be legally, ethically and professionally acceptable, it must always be informed (Mason and Laurie, 2010; Royal College of Veterinary Surgeons (RCVS), 2010a). The term, ‘informed consent’ can be considered in two parts — first, informing the patient, or in the veterinary context, the owner, and second, documenting the process — therefore, the consent form itself merely fulfils the latter, and then only partly, by evidencing that at the end of the consent process, consent has been given (Childers et al, 2009). Consequently, how informed consent is achieved is significantly reliant on both how the veterinary team informs owners and how they undertake obtaining consent as a process. The following discussion of the legal, ethical and professional perspectives on consent will therefore include considerations of both these criteria.
The legal perspective
Obtaining consent before undertaking treatment is an important component of the health professional's legal obligation; failure to obtain informed consent can constitute negligence (McHale, 2007). In veterinary practice, consent has a significant additional legal element, because consent for veterinary procedures inherently involves contract law (Gray, 2010). Both of these legal components of veterinary consent have implications in practice and will be considered below.
Contract law
In the veterinary context, consent to treatment of an animal by the owner can be described as the client entering into a contract with the VS and the veterinary practice (Dye, 2006). Consent is one of the legal requirements for the formation of a valid contract (Barker and Padfield, 2002).
While consent may be given orally or in writing, written consent may help to provide evidence if there is any future dispute (McHale, 2007). However, the presence of a signed consent form alone does not constitute valid consent. For any consent to be valid in law, it must be informed (Gray, 2010). Many disputes surrounding consent concern whether the consent was given based on sufficient and correct information; if it was not the consent can be considered invalid (Dye, 2006). Therefore, what is considered ‘informed’ is of great importance.
In their response to the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary, the Department of Health (2002) endorsed guidance that in order to make an informed decision as to how to proceed, patients require the following information:
The author proposes that these points would be similarly beneficial in guiding veterinary professionals as to the information owners require in order to give informed consent. When considering how detailed or comprehensive such information should be, it is necessary to note that in the medical profession, Brazier (2003, cited in Dye, 2006) contends that ‘any claim by the professional that the other person would not understand the technicalities of the issue is not a valid justification for not informing the other person.’ Therefore, the onus is on the veterinary team's ability to explain complex veterinary procedures to clients in an accessible way, something that the VN's communication and client skills may make them ideally placed to assist with.
If informed consent is not achieved, then a valid contract is not formed. The implication of this is that no legally recognizable and enforceable rights and obligations will exist on both sides (Barker and Padfield, 2002).
Negligence
The necessity to inform the owner fully during the consent process is also due to implications under the tort of negligence. McHale (2007) asserts that, in the medical profession, if the patient is not fully informed of the risks of the proposed treatment and something goes wrong, then all of the criteria for action to be brought in negligence may be met:
Where the risks are considered to be minor or inconsequential, the information can be withheld if this would be an accepted practice within the professional community; however there are indications that courts are increasingly prepared to scrutinize professional practice (McHale, 2007). Therefore, care must be executed when deciding what it is not necessary to tell a client.
The ethical perspective
A definition of ethical consent is given by Gillon (1985, cited in Farsides, 2007) as:
‘a voluntary un-coerced decision made by a sufficiently autonomous person on the basis of adequate information to accept or reject some proposed course of action that will affect him or her’.
Therefore, the provision of adequate information is not only a key legal criterion for valid consent, but also an ethical one.
One of the recommendations reached by considering legal guidance regarding what constitutes sufficient information for those considering consent was to ensure that the likely outcome, as well as the risks, uncertainties and possible negative consequences of the proposed treatment are clearly explained (Department of Health, 2002). Fettman and Rollin (2002) propose that veterinary clients judge these risks and benefits in terms of quality of life, empathy and anthropomorphism, thus creating a significantly moral and emotional foundation to the concept of informed consent.
The emphasis on the need for skilled communication by professionals, to enable them to convey sufficient information to clients, such that they become clearly informed, is made clear in literature considering consent from an ethical standpoint (Fettman and Rollin, 2002; Farsides, 2007).
Effective communication is essential to reach an understanding of the client as a person. This includes asking and listening, in order to determine how the individual is coping with being in the veterinary setting, and what they wish to gain from their contact with the veterinary team (Farsides, 2007). Possession of cultural literacy, in order to understand the beliefs and practices of different groups, will also help in this regard (Farsides, 2007). Fettman and Rollin (2002) contend that the cultivation of trust achieved by utilizing all of these skills is what greatly contributes to fulfiling the ethical aspects of clinical practice with regards to informed consent.
The importance of trust throughout the consenting process was also highlighted by the report following the public inquiry into the events at Bristol Royal Infirmary (HMSO, 2001). This concluded that trust can only be maintained by openness on the part of the health professional, where such openness was defined as information being given ‘freely, honestly and regularly’, particularly with respect to any risks and uncertainties.
Other skills needed during the ethical consenting process are proposed by Farsides (2007) as support and clinical knowledge base. The former is often necessary for those involved in the consenting process, but absolute care must be taken to be non directive and non judgemental (Farsides, 2007). Often, just enabling a client to have time and opportunity to deliberate before consenting will be sufficient. The transition between an initial diagnosis and discussion of treatment options needs to be handled carefully, especially in cases of bad and/or unexpected news (Farsides, 2007). The VN, with a client focussed yet clinically competent approach, may be able to assist in this transition.
The professional perspective
In the American medical profession, informed consent has been imposed as a professional practice standard. While the UK did not follow suit formally, McHale (2007) reports that practice is adopting the same standard, with patients being given more information due to the perceived need for enhanced openness and honesty.
A parallel exists in veterinary practice. While several American states have mandatory informed consent statutes (Flemming and Scott, 2004), here the RCVS has placed great emphasis on the necessity for informed consent as an integral part of professional practice (Royal College of Veterinary Surgeons, 2010a). This was in response to concerns regarding this ‘critical area’ of practice by the Lay Observers' Report of the RCVS Preliminary Investigation Committee (Royal College of Veterinary Surgeons, 2007).
Whose professional responsibility is it to obtain consent? In the medical profession, Burnard and Chapman (2003) advise that it is desirable for the person performing a procedure to be the one who obtains consent; if the task falls to the nurse she must first learn what the medical practitioner has communicated to the patient and whether it has been understood. McHale (2007) suggests an additional secondary role for nurses: one of support for patients seeking further clarification if they are still confused or uncertain following consultation with a doctor.
In the RCVS' Guide to Professional Conduct for Veterinary Nurses, the VN's professional responsibilities to the client in relation to consent suggest similarities for the VN's role in veterinary practice:
To elucidate the supportive role of the VN in the consent process, it needs to be recognized that the VS possesses the primary professional responsibility for gaining consent (Dye, 2006). This becomes further evident when the VS's professional responsibilities to the client, as applicable to consent, are examined:
(RCVS, 2010a, Part 1. D., 1.f, g, i; 2.d).
If it is found that a VS has failed to obtain informed consent, they may be subject to disciplinary action for serious professional misconduct (Royal College of Veterinary Surgeons, 2011).
Recommendations for practice
Having considered the legal, ethical and professional perspectives of informed consent, it should now be possible to formulate recommendations for the part the VN can play in ensuring best practice is achieved. Farsides (2007) describes nurses in the medical profession as vital to the consenting process — the best placed person to judge the extent to which the patient has understood, digested and deliberated on the information given to them. The author proposes that VNs also possess the necessary skills and knowledge to give them a similarly key role in the process of obtaining consent.
In her recommendations for good practice, Dye (2006) emphasizes the necessity of recording the information given to the client during the consenting process. This information can be summarized as:
The written records should also include details of any answers given to questions posed by the client as they reach their informed decision.
The author proposes that, while it has been established that the provision of the above information is the primary responsibility of the VS, best practice would include a VN being present throughout these stages of the consultation, in order to document this process as it occurs.
Where the proposed treatment is a routine procedure, the use of client information sheets can be invaluable. These could be pre prepared by the VN and approved by the VS. The information should be broken down into an appropriate form — simple diagrams are often helpful and complex terminology should be translated into lay language, without being condescending (Burnard and Chapman, 2003). While such sheets should not take the place of verbal discussion, their use may help reduce explanation times and also allow for the client to take information home and deliberate further.
Once the client has reached a decision, the VN can then be left as the person with whom the owner signs the consent form, as evidence of their agreement to the proposed treatment (Dye, 2006). The importance of this concluding part of the consultation, where the client is left alone with the VN, should not be understated. As Earle (2007) asserts, clients are likely to approach a VN with any remaining concerns, which may be expressed indirectly due to embarrassment; such anxieties must always be explored and where significant reservations and misapprehensions remain, these must be redirected back to the VS.
Conclusion
Informed consent is an integral part of valid consent. The existence of a signature on a consent form is not sufficient. Legal consequences of failing to establish that consent was informed include negligence and the contract between the veterinary practice and client being deemed invalid. It is the VS's professional responsibility to obtain consent, but VNs still have a key role to play. They are professionally bound to facilitate communication between the VS and the client; during the process of consent this communication is pivotal to fulfilling the moral obligations to the client and thus achieving ethical consent. By exhibiting a thorough understanding of the relevant legal, professional and ethical issues, the support that the VN can provide to both the client and the VS as informed consent is worked towards will prove invaluable.