Healthcare professionals - supporting adults who present having experienced rape or sexual assault: clinical pathway

7. Consent

Key points

• Consent is a dynamic process. For adults with capacity, subject to the other points set out below, no examination should be undertaken without the person’s consent
• Accessible information should be provided to ensure that a full understanding is gathered before and throughout the examination
• An adult’s consent should be given freely, be specific and without coercion - providing that they have the capacity to consent
• For a small proportion of people, there may be a need to formally assess capacity and to document the reasons for making a particular decision at that time in the person’s best interests
• The person is entitled to be accompanied by a supportive person of their choice, for example a friend or carer, during any such discussion

Health Boards must ensure that the processing of any personal data is done in compliance with the Data Protection Act 2018 and, where relevant, the General Data Protection Regulation (GDPR). Independent advice on how to comply with any duties or obligations should be taken if needed

7.1 Consent to Assessment, Examination and Treatment

A Doctor, Forensically Trained Nurse (FTN) or other appropriately trained healthcare professional may be involved in sharing information with the person at different points in the person’s care. For the purpose of this section, the term healthcare professional is used to capture anyone who may be involved in the persons care.

Sexual Offence Examiners (SOE) are expected to follow the detailed guidance on consent produced by the General Medical Council (GMC). The GMC guidance states that doctors must be satisfied that they have consent (or other valid authority) before:

• Carrying out any examination or investigation
• Providing treatment
• Involving patients in teaching or research

Doctors must consult the most up to date guidance on consent from the GMC.

A fundamental ethical principle guiding medical practice is that no examination, investigation or treatment of a competent adult should be undertaken without the person’s consent. In order for consent to be ‘valid’ the individual must have been given sufficient, accurate and relevant information. They must be given the information in plain English or via an interpreter with sufficient time to consider the decision they are making. The individual must have the competence to consider the issues and to reach a decision and that decision must be voluntary in terms of not being coerced (Faculty of Forensic and Legal Medicine, 2017). If there is doubt about a person’s capacity to consent, please refer to section 7.4.1

Where a person has a disability, this does not mean that they are not able to give consent. The approach taken should be in line with the principles of supported decision making.

When seeking consent to provide a FME, the question of whether the information given to a person is adequate is judged from the perspective of a reasonable person in that person's position. Doctors have a duty to take reasonable care to ensure that people are aware of 'material risks'.

The purpose of a FME should be explained to the person in a way that they can understand and in plain English. For those whose first language is not English see section 7.4.1.

Local pathways should be in place for use of interpreters including British Sign Language interpreters to provide support for those who are deaf or hard of hearing and those with additional communication needs.

The clinician must provide all information in a clear way and give as much time as the person requires to understand the process and the choices available to them. A patient information leaflet setting out what an examination involves can be provided to aid understanding and decision making. Information on what the FME involves and what will happen following a report to the police, can also be found in the video by Rape Crisis Scotland^[49].

The person should be provided with accessible information to ensure they have a full understanding of what will happen before, during and after the examination and during follow up. It is important that the clinician is aware and is conscious of how information is framed and the potential power imbalances that may exist between the healthcare professional and the person who has experienced trauma.

It is also important that to ensure a truly trauma-informed approach is taken, individuals should feel empowered to express their views and clinicians should be aware of cultural/religious sensitivities which may have an effect on a person’s response to an examination. There should be no indication, even in body language, that the time available is limited. The person should be fully informed throughout the process, allowing them to make informed choices about their care. An adult’s consent should be given freely, voluntarily and without coercion providing they have capacity to consent. The person is entitled to be accompanied by a supportive person of their choice, for example a friend or carer, during any such discussion. Consent is an ongoing process and an individual can withdraw consent at any stage during the consultation and examination and their wishes must be respected.

7.2 Data Protection and Confidentiality

In a healthcare setting, patient data is held under a duty of confidentiality. Health Boards should process personal data in line with Data Protection legislation and in line with Health Board data processing protocols.

7.3 Refusal of any Elements of the Examination

Every adult with capacity is entitled to refuse medical intervention and their refusal must be respected. A person cannot be deemed to lack decision making capacity simply because there is a risk that they might make what appears to be an unwise decision.

If a person chooses not to have a FME, then they should do so with a clear understanding of the implications of the choice they are making including the potentially detrimental effect this could have on any future police investigation or prosecution and that choice should be respected. The person should be offered healthcare even if they do not consent to the FME. There may also be particular aspects of the examination they do not feel able to undertake but some aspects they feel they can proceed with.

7.4 Adults with Incapacity

For a small proportion of people, there may be a need to assess their capacity to make a particular decision at that time. This does not mean they lack capacity to make any decisions at all or will not be able to make similar decisions in the future. See GMC: Consent Guidance: Assessing capacity^[50].

In Scotland, the Adults with Incapacity (Scotland) Act 2000^[51] (“the 2000 Act”) defines individuals as incapacitated if they cannot act, make decisions, or communicate them, understand or remember their decisions. In line with the principle of Supported Decision Making (SDM), substitute decision making by another person should be a last resort. Where SDM applies, the SOE (see Appendix B, Roles and Responsibilities) should, following initial assessment, act in accordance with the principles of the 2000 Act, only act in ways that are for the benefit of that individual person and take full account of the person’s wishes and feelings. If the person has difficulty formulating or communicating wishes and feelings, communication must be facilitated so far as is feasible in the circumstances. The impairment may be due to a mental disorder or a physical inability to communicate in any form. Under the UN Convention on the Rights of Persons with Disabilities^[52], disabled people have a right to exercise their legal capacity and must be provided with the support necessary to enable them to do so. Article 12.4 contains safeguards as follows:

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.

The UN Convention has been ratified by the UK Government, along with the related complaints mechanism. Article 12.3 can be said to support the principle of SDM which is the process of assisting a person with cognitive impairment to build and exercise their capacity to make and communicate decisions for themselves. The Scottish Government is committed to the implementation of domestic human rights legislation and international instruments including the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which the UK Government ratified in 2008.

7.4.1 Factors Which May Affect Capacity or Ability to Consent

The SOE should be cognisant of other impairments or language barriers which may affect an individual’s ability to consent.

Use of interpreters or sign language interpreters may be appropriate and NHS Health Board guidance should be consulted. Interpreters may be provided by other agencies such as local authorities. Family members, friends or partners of the person should not be used.

7.4.2 Temporary Loss of Capacity Due to Intoxication

People who are intoxicated due to alcohol or drugs may temporarily lose their capacity. In such circumstances, the assessment should normally be deferred until the person’s capacity has returned.

The period for deferment will depend on the type, amount and quantity of the substances that have been consumed. It may be necessary to assess the person repeatedly over a period to determine if the person’s capacity has returned.

Clear and precise reasons for deferring a FME should always be recorded.

7.4.3 Person with Serious Injury / Unconscious Person

On occasions people are seriously injured during a rape or sexual assault and the ensuing injuries may result in a loss of capacity (for example where the person is unconscious).The FFLM’s recommendations on consent for patients who may have been seriously assaulted^[53] advise that any attendance in an acute care setting to carry out a FME on a seriously ill or unconscious person should be with the prior knowledge and permission of the consultant in charge of that person’s medical care who should also be informed of the nature and purpose of the proposed examination to ensure that they have no objections to it being undertaken (FFLM 2014).

Each person and their condition should be evaluated on an individual basis with consideration always given to the rights of the person namely:

• The right to life
• The right to bodily integrity
• The right to privacy
• The right to self-determination
• The right not to be discriminated against based on disability (including people with a learning disability)

The SOE must act on the basis of good professional practice and a FME should be undertaken with consideration of the will and preference of the person and their right to exercise legal capacity (the principle of SDM). The rationale behind any decisions, the factors considered and the judgements made may need to stand up to future scrutiny. All steps taken and decisions made must be clearly documented.

In understanding the will and preference of the person, the SOE should consider speaking to people close to the person about the nature and purpose of the proposed examination in order to determine the person’s past and present wishes or feelings, beliefs and values so that these can be considered.

The SOE must be mindful that in some cases it may be a member of the family or a close ‘friend’ who is the perpetrator.

In other cases, there may be sensitive information about an incident that the person would not wish to be disclosed to friends and/or family. Therefore, the SOE must endeavour to understand the will and preference of the person and gain their consent before speaking to any friends or family members about the person.

The SOE should also ascertain if the person has made an advance directive relating to their future medical care to ensure that their wishes are respected. Those close to the person and/or a legally appointed Welfare Attorney (WA) or Welfare Guardian (WG) should be consulted in these circumstances.

The SOE should ensure that the person is informed what has been done and why, as soon as the person is sufficiently recovered to understand.

In complex cases further advice and guidance should be sought from appropriate senior colleagues.

Useful Resources

General Medical Council (2008) Consent: patients and doctors making decisions together^[54]

General Medical Council (2018) Five things to know about our Confidentiality

guidance and the GDPR^[55]

Faculty of Forensic and Legal Medicine (2014) Consent for patients who may have been seriously assaulted ^[56]

Information Commissioner (2018) Guide to the General Data Protection Regulation (GDPR)^[57]