Consent, assent, and the importance of risk stratification

In law, consent allows the patient to determine what treatments they will accept or refuse. In this article, the common law of consent relating to anaesthesia is reviewed in order to highlight more recent changes to the standard of information provision and treatment of patients without capacity, and to form the basis of a critique of the current law. Practical and conceptual problems with the three core pillars of consent-voluntariness, capacity, and information-are analysed, along with the identification of logistical problems and contemporary theoretical challenges to the notion of patient autonomy as the basis of consent, concluding that 'assent' better describes the current legal position regarding treatment permission than 'consent'. In spite of this, the process of consent/assent is recognized as a major incentive towards data collection about patient-, operator-, and institution-specific risk, in order to better inform patients about the risks and benefits of treatment.