Home > Consent – is there a new way of thinking about an old problem?

The main theme of this lecture is to suggest that it may be time for change in the processes used by doctors to secure “consent” to treatment because – somewhere along the line – the processes of the patient making decisions and the doctors securing consent have become detached from each other.  Properly understood, I suggest, they should be part of the same process, not separate but on-going processes.

I will refer to medical professionals as “doctors” in this talk, but everything I say is equally applicable to all other medical professionals.  I will also refer to the doctor as “she” in deference to the fact that I am married to a woman doctor and have a daughter and sister-in-law who are doctors.  She in the Lock household, all doctors are women[1].

My proposed process changes do not necessarily mean a change interactions between doctors and patients – in fact these proposals are about changing the documents used by doctors to record their interactions with patients and should bring them in line with existing good clinical practice.  Hence, to a great extent, I am suggesting that the record keeping processes and how doctors think abuse consent should change to reflect what the majority of doctors are already doing. The practical effect of these changes would be patients never again hear the word “consent”. I argue that such a change would be beneficial for both patients and doctors and reduce the costs to the NHS from litigation in this sensitive and difficult area.

That does not mean that I am recommending that doctors should treat patients without their consent.  That would be unlawful and would simply add to the workloads of my colleagues who undertake clinical negligence work, as well as adding to cases before the Medical Practitioners’ Tribunal.  Instead, I am suggesting that we reframe the way that the “consent process” operates so it supports patient decision making as opposed to being a stand-alone process.

First Principles:

Let’s start at the beginning – the very beginning.  After all, “it’s a very good place to start” as Julie Andrews observed in The Sound of Music[2].

What is the purpose of the consent process?  There is a positive and negative side to consent and it is probably fair to say that the negative side dominates the thinking of doctors and lawyers; but maybe that places the emphasis in the wrong place.  Professor Jean McHale opens her seminal chapter on consent in Principles of Medical Law by observing “Treatment without consent may amount to the tort of battery or the crime of assault[3].  She then goes on to say that “The requirement that a patient with capacity gives consent before being subject to any medical procedure is the legal reflection of the principle of respect for autonomy which takes precedence over the duty of care owed by clinicians to their patient”.

That is because, as Cardozo J said “Every human being of adult years in sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, which he is liable in damages[4]”.

These are fine, precise words but what do they mean in practice?  In simple terms, the starting point is that, in matters of medical treatment, the adult patient with capacity is the decision maker, not the doctor[5].  In the battle between autonomy and duty of care for an adult patient with capacity, autonomy wins.  An adult with capacity is the sole person who decides whether he or she should have surgery or have a vaccination injection, not the doctor, not the court and not the government.  And patients do not have to justify their medical treatment decisions to anyone else; especially to their doctors and certainly not to the government.  As Lady Justice Butler-Sloss said[6]:

“A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death”

There is an often overlooked consequence of the patient’s autonomous right to make their own decisions. Whilst there is an inequality of information and arguably often an inequality of power in the doctor/patient relationship, once the adult patient with capacity makes the decision, the patient must take responsibility for and live with the consequences of his or her own medical treatment decisions.  Doctors can and do offer support to the patient but the patient alone lives with the consequences.

The right to make decisions means that the decision maker has to accept the good or bad things that happen to him or her as a result of making a decision.  Let me illustrate this with an example.  The founder of Apple, Steve Jobs was diagnosed with a rare form of pancreatic cancer, called an islet cell tumour or gasteroenteropancreatic neuroendocrine tumour (GEP-NET), which is a different form of pancreatic cancer than the highly aggressive and often rapidly fatal pancreatic adenocarcinoma. GEP-NETs are slow growing tumours that have the potential to be cured surgically if the tumour is removed prior to metastasis.  The evidence to support surgery was thin and Mr Jobs followed complimentary therapies and delayed for 9 months before agreeing to surgery.  He died of the condition 4 years later.  No one knows if earlier surgery would have saved his life.  But he made an informed decision not to have surgery at that point and never suggested that anyone else was responsible for the good or bad consequences of his decision.  Consider another topical example; a patient is fully entitled to refuse a Covid-19 vaccination but the patient has to live with any lawful consequences of that decision, which may mean the loss of their job[7].

There is an understandable temptation for patients to want to delegate medical treatment decisions back to doctors.  Patients say “What do you think doctor?”, “What would you do in my position” or even “You make the decision doctor”.  Doctors might believe that they will make better decisions than patients – and this will often be true.  It will also speed up the decision-making process and lead to more efficient medicine.  But going beyond the provision of advice to act as de facto decision maker is a temptation which all doctors should resist; these are not the doctor’s decisions to make.

Given the legal position is clear, it is legitimate to ask whether the ways NHS hospitals[8] presently operate bring home to patients that they, and they alone, have to make their own medical treatment decisions?  Do the existing systems help patients understand who is the decision maker or do they invite them to collude in the fiction that patients are on a medical conveyor belt where decisions are made for them by others who know best?  That is an issue I will return to in a moment.

What are the duties on the doctor to provide information and advice?

Given that the patient is the decision maker, what are the duties on the doctor to assist the patient with making that decision?  The answer – as you will all know from your studies to date – comes from the Supreme Court in Montgomery[9]The doctor has a legal duty to take reasonable care to ensure that the patient is made aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  This is what doctors were, in practice, required by the GMC Code of Practice to do prior to Montgomery.  However, in that case, the Supreme Court held that the test of “materiality” was whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should have been reasonably aware that the particular patient would be likely to attach significance to it.

There are three caveats which need to be noted following Montgomery.

First, the doctor is entitled to withhold relevant information as to a risk if he reasonably considered that its disclosure would be seriously detrimental to the patient’s health or in circumstances of necessity.  That caveat is much discussed and debated – but not here.  I am concerned here with standard arrangements; not non-standard ones where exceptional circumstances may apply.

Secondly, I am not concerned here with emergency situations in which the whole consent process is telescoped into a short conversation because time is critical, or the doctor assumes the role of decision maker for a patient who lacks capacity.  A whole different set of considerations arise in such cases.

Thirdly, it is important to recognise that there are particular challenges where, for example, patients do not share a common language with the doctor, are unable to read so that the provision of written material is of limited benefit or have capacity but also either have dementia or learning difficulties, placing support duties on the doctor and making the process of decision making slower and far more difficult.  The standard processes I describe below would need to be adapted to meet the needs of such patients.

But aside from such cases, the norm is that a million people are treated each 36 hours within the NHS.  Many of these are small scale, routine treatments but a significant number involve the patient making decisions which are hugely significant for that person.  By way of a fairly typical example, I would like to examine the processes followed where an adult with capacity is referred to a consultant’s outpatient’s clinic to consider surgical options for chronic back pain.  If surgery is provisionally agreed, the patient will then be seen in a pre-op clinic a few days before the operation.  Then, the patient is then admitted to hospital and the surgery is carried out.  How do and how should the consent model work in such a case?

Why is the doctor is required in law to perform the role of information provider?  The answer is that the doctor provides information in order to counterbalance  the inequality of expertise and power in the doctor/patient relationship.  The doctor knows more than the patient about what can or cannot be done to treat the back pain, options for the patient other than surgery, how much benefit the patient might get from surgery and what risks there are in any proposed surgery.

In medical treatment, as in law or indeed any professional service environment, the most informed person in the room provides advice and the least informed person makes the decision.  The doctor has to provide appropriate amounts of information and advice so that the – assumed to be – relatively uninformed patient is properly able to make their own decisions about the medical treatment options for their own body[10].  The doctor provides information to put the patient in the best position to take a decision which the patient, and only the patient, can make.

The provision of information and advice by the doctor to the patient is a key step in the process leading up to the patient making either a provisional and then final decision about what medical treatment that patient wants for himself or herself.  The guidance[11] from the General Medical Council on what information a doctor must give patients at this stage is clear.  It says:

“You must give patients the information they want or need to make a decision.

This will usually include:

  1. diagnosis and prognosis
  2. uncertainties about the diagnosis or prognosis, including options for further investigation
  3. options for treating or managing the condition, including the option to take no action
  4. the nature of each option, what would be involved, and the desired outcome
  5. the potential benefits, risks of harm, uncertainties about and likelihood of success for each option, including the option to take no action.
    By ‘harm’ we mean any potential negative outcome, including a side effect or complication”

The GMC Guidance then goes on to talk about the need for the doctor to work out what is important to the individual patient, so that the doctor knows what information that particular patient needs before decisions are made by the patient and provide appropriate information and advice.

Theory vs practice.

This is all fine in theory but how does the twin process of the patient making decisions and securing consent from patients work in practice?  The answer is that theory and practice sometimes work well and sometimes depart from each other.

The typical medical model is that the consultant has a discussion with the patient in out-patients, gains information about the patient’s circumstances, understands the degree of pain and sets out the treatment options including the options of having treatment or not having treatment.  Typically if surgery is proposed, the doctor and the patient will reach a provisional agreement about the way forward.

The consultant makes brief notes about the consultation, dictates a letter for the GP setting out the proposed way forward, with a copy typically sent to the patient, and then moves onto the next patient.  The train has been set on the tracks towards a surgical operation and information on the decision is provided to the patient.

At some point prior to the operation, the patient is called to a “pre-op clinic” to check the up to date clinical picture and ensure that the patient still wants the operation.  This is typically the point at which the doctor goes through the consent form[12].  The doctor checks the patient understands what type of operation he or she going to have, goes through that doctor’s  list of risks with the operation and gets the patient to sign the consent form.  If the consent form is not completed at the pre-op clinic, it will be completed by a junior doctor after admission and thus shortly before theatre.  Either course involves a process which is undertaken at a time when the surgeon is allocated and operating theatre time is booked, and so the effective decision to proceed with surgery has already been taken.  Hence, by this stage, the patient is under huge psychological pressure to agree to proceed with the surgery, and thus accept the risks entailed.

Our systems mean that, by the stage the patient is presented with a “consent form”, effective decision making about what treatment the patient is having has already taken place; it is thus easy to see why many doctors see the “consenting” process as a tick-box exercise to put the paperwork in place shortly before the patient is put under and wheeled into surgery.

So do patients typically understand what is going on in the consent process?  There is limited evidence but overall the answer appears “No”.  Professor Emily Jackson referred to a questionnaire study’[13] in her excellent textbook which reported the outcome of the consent process for patients as follows:

“Most participants (646, 88%) believed it was a legal requisite to sign a consent form before surgery. A fifth (20%) did not know whether they could change their mind after they had signed the form, and 118 (16%) incorrectly thought that signing a consent form removed their right to compensation . . . One in 10 patients reported that they did not know what they agreed to when they signed the consent form . . . Almost half of all participants (46%) believed that the main function of signing the consent form was to protect the hospital from litigation, and two thirds (68%) thought it gave doctors control over what happened . . . Many patients did not see written consent as functioning primarily in their interests nor as a way of making their wishes known. As suggested in previous work, many thought the primary function of the form was to protect the hospital”

That was in 2006 and things might have improved since then, but my experience does not suggest to me that there have been radical changes in the NHS processes.

There may be some lessons to learn from Infected Blood Inquiry, albeit that these examples are from the 1980s and so are indicative of practice some decades ago.  Issues of consent are central to the Infected Blood Inquiry.  In summary – and this is only a summary of an inquiry where there are 14 million documents – in the period prior to 1991, NHS-donated blood and blood products carried the risk of the transmission of life threatening conditions such as Hepatitis C and HIV.  Patients were virtually never warned of these risks and, it appears, on many occasions the doctors providing blood transfusions were either wholly unaware of the risks, aware of the risks but did not think it was their duty to tell the patient that a blood transfusion carried a small but significant risk of a life threatening condition or knew the risks but followed the standard practice of the time in not worrying the patient by telling them about the risks.

Let me give you two real but anonymised examples.  A patient has mild haemophilia.  He is given dental treatment and there is a risk of bleeding, so he is given a blood product, “Factor 8 ” to help increase his body’s ability to make the blood clot in case there is a bleed.  The dentist did not warn him that this blood product carried any risks. In fact, the dental surgery goes well and there is no bleeding.  Twenty years later after feeling generally under the weather, suffering mysterious brain fog and a host of other unexplained symptoms he finds he carries the hepatitis C virus and has contracted HIV.  He takes drugs for 9 months to clear the virus with staggeringly awful side effects – 9 months of his life that he writes off.  But, as a mild haemophiliac, his body could have coped with any bleeding without Factor 8.  It would have been a bit rough but he only had mild haemophilia and would have got through any episode of bleeding as he had before. He lives with the long term health risks of having carried HCV and takes drugs life long for HIV.

The second example is a new Mum who went into hospital to give birth.  It was her first baby, and she was nervous and excited.  She had moderate bleeding – nothing spectacular but she was signed up for a blood transfusion to top her blood levels back up.  The maternity ward is busy, the staff were working under huge pressure and a new Mum with lower blood levels would take longer to recover in hospital.  No one warned her of the risks and she accepted the blood and went home with her new baby.  In the coming years, she also found herself feeling generally under the weather, suffering mysterious brain fog and a host of other unexplained symptoms but she was a young mum with 3 children by now and it was all put down to stress.  Eventually, 15 years later she is diagnosed with HCV and had a torrid time before she died prematurely from liver cancer.

Both of these patients signed a “consent form”.  Neither were informed of the risks at the time they did so and so arguably gave no valid consent.  Hence, the consent form was not worth the paper it was written on.  No clinical professional was triggered to think about what risks the patient was undertaking by agreeing to a blood transfusion and whether the treatment was genuinely being offered because it was in the best interests of the patient to undergo those risks for the anticipated benefits, or whether the patient was exposed to the risks and the doctor or dentist was the primary person benefitting from the provision of treatment – by increasing their ability to move on to treat the next patient.

What ought to have happened in each is that the relevant clinical professional should have advised the patient that this was a procedure which had some potential benefits and some material risks, and the patient should have been asked if the benefits for him or her outweighed the risks.  That conversation never happened, and it is impossible to know what decision would have been made in either case if the discussion had happened.

Do modern consent forms answer this problem?

We have looked at a series of consent forms used by NHS bodies in preparing this talk.  On their face, these are all entirely lawful documents.  But they are long, complex, defensive forms which are really designed to protect doctors and the hospital trusts for whom they work from negligence claims, not to promote patient autonomy or correct the power imbalances in the doctor/patient relationship.  They are designed to ensure there is an audit trail to show that patients have all the requisite information they need before they make a final, final decision as to what medical treatment they are going to have.  But the audit process is intended to protect the hospital, not enhance the autonomy of the patient.

Crucially, the “consent process” typically happens in an elective scenario long after the effective decision about medical treatment has been made.  It is a checking process about an earlier decision that has already been made, not an information provision process to assist the patient make the decision in the first place.

This is, I suggest, the central flaw in the current approach to obtaining consent.  It may not be a legal flaw, but it certainly is an ethical flaw.  The consenting process – the filling in of the consent form shortly before surgery – generally happens after the doctor and the patient have decided what treatment the patient should have.  Earlier and key conversations between a doctor and a patient are the place where decisions were made, with entirely proper information being given about the advantages and disadvantages of the particular operation in an entirely responsible way.  But, as the systems operate at present, the consent form is not part of that process.  It is treated as something entirely separate.  Hence we have reached the slightly odd position where a legal process that is supposed to lead to the patient making decisions about treatment is separated from the process of obtaining consent.  Should they be treated as entirely different processes?

Is there a better way? 

I am cautious about suggesting that many brilliant people have been involved in developing a system with structural flaws, but can I tentatively suggest that the process might work in a way that would improve the decision making process for both doctors and patients.

First, I invite hospital trusts and doctors to abandon traditional consent forms and to replace them with a “Patient Decisions Form”.   Given that the purpose of doctors providing information to patients about the advantages and disadvantages of the particular medical procedure is to enable the patient to make an informed decision, surely it would be make this clear in the name of the form..

I thus suggest the NHS should design a form which clear says to the patient “this is about you taking decisions”.  I think it is important this form is not a labelled as a “consent” form but a form which is headed with words which make it clear that the purpose of the form is to record decisions taken by the patient.  It needs a name which explains who is making what decision based on what information, not a form designed to stop doctors being sued.  You might say “What’s in a name”.  This phrase comes from Shakespeare’s Romeo and Juliet: ‘What’s in a name? that which we call a rose By any other name would smell as sweet’.  But anyone looking at a rose can recognise that it is a rose.  A patient who is faced by a consent form may not understand what the form is for.  After all, most patients thought it was a form to protect the hospital, not enhance their autonomy.

The PDF could also contain three key elements to meet the concerns identified by Professor Jackson.  First, it could set out the potential advantages and risks of the operation so the patient can mull over these afterwards.  That meets the concern that none of us retain all the information relevant to a medical treatment decision when it is first provided to us.

Secondly, it can say in clear terms that the patient can change their mind at any point.

Thirdly, it can contain a box for the patient to write out their own questions for the doctor to answer at the next appointment.

If the NHS re-named the form as a “Patient Decision Form[14]” – which I will summarise as a PDF form for this lecture, then patients would have a better chance of understanding that the purpose of the form was to record the decisions taken by the patient about their own treatment and to record the information provided to them to help them make that decision.

The single form could then follow the patient through his or her clinical journey and be printed or emailed to the patient so that the patient can read it again in slow time, amended or added to at subsequent consultations, so the doctors can make sure the patient really understands what is being signed up to and what are the potential downsides of any procedure.

Some doctors might say that this is wrong because medical treatment decisions are not for patients alone and point out that the GMC Guidance talks about doctors and patients being engaged in “shared decision making”.  That is partially correct but can be another misnomer if it is misunderstood.  Medical treatment decisions are only shared decisions to the extent that patients can only accept treatment options that a doctor is prepared to offer.  The best analogy to my mind is a restaurant.  The restaurant owner decides what dishes are on the menu and the customer chooses from those on offer.  The customer cannot choose something which is not on the menu but the choice from amongst those options is made by the customer, not the waiter.  Here, the doctor decides the treatment options which he or she recommends or the option of no treatment.  That is the “menu”.  The patient makes the choice.

A doctor cannot be required to act contrary to his conscience by offering requested medical treatment that is considered by the doctor to be contra-indicated.  The Court of Appeal have made it clear that a court should not require any doctor to act contrary to his or her conscience: see Re J. (A Minor) (Child in Care; Medical Treatment)[15].  However where a patient wants treatment which had the potential to offer clinical benefit, most clinicians will agree to offer that treatment even if the clinician could not advise that treatment as the best option. Hedley J in Portsmouth NHS Trust v Wyatt[16] noted that an offer of the requested treatment is generally made unless the giving of that treatment would be an affront to the doctor’s conscience.

The second change I propose – hinted above – is that the PDF follows the patient through the patient journey.  That means is first completed by the doctor at the point that any form of treatment decision is made, as opposed to only being completed at a later point.  There are five – to my mind compelling – reasons why this would be a far better way to record what decisions are made by the patient and to provide evidence that the decision was informed by a proper understanding of the potential advantages and disadvantages of any recommended form of treatment than the consent form process.

First, a consent form is not, in law “consent”.  It is no more than evidence of the supposed state of mind of the patient who is agreeing to the medical treatment decision.  The form is only evidence of consent but is not consent itself.  As Professor McHale rightly notes[17]:

“Consent is a state of mind personal to the patient whereby he agrees to the violation of his bodily integrity”

A consent form signed by someone lacking mental capacity, under duress or with inadequate information is not sufficient evidence of consent.  But consent to what?  It is consent to the decision to be treated in a specified way.  And the best evidence of that state of mind[18] is evidence about what happened when that decision was made; because the best evidence of the state of someone’s mind is evidence of what was said to them and by them at the point that this decision was made.   Completing a MTD form at the initial outpatient hearing does this.  A consent form completed 3 months later when the train is on the track and the patient is about to have the operation does not.

Secondly, the doctor who advises on the choices of procedures has the duty to provide information to the patient about the advantages and disadvantages of the recommended procedures, and the option of not having the treatment.  Making that doctor record what information has been provided to the patient prior to the decision being made is of benefit to both the doctor and the patient, even if this is not a final decision.  This information is, of course, usually properly provided in the medical notes and is the information on which the patient makes the decision.  It is just not recorded as “consent” even though this is what it is.  A form which captures this would seek to maximise the chance that the patient has full information when asked to make the decision and protect the doctor against a later complaint that an adverse risk was not mentioned.  Completing the form at the point of initial decision thus ensures that there is a record of the information provided to the patient at the point when the first, and usually crucial, decision is taken.

Thirdly, completing the PDF at the time of the decision fulfils the need identified in Montgomery for the doctor to provide information which is relevant to that particular patient, and which focuses on what is important to that particular patient.  The doctor who discusses the potentially difficult decision with the patient should be far more attuned to what is important to this patient than a doctor who seeks to “consent” the patient after the decision has been made.  That latter doctor will typically have less knowledge of the background, know less of the context within which the decision is made or what is of particular importance to that person.

Fourthly, this approach avoids conflicting information being given, whether recorded or not, to the patient about the benefits and risks of the medical procedure between two different doctors.  There is an inaccurate but widely believed maxim in healthcare that “if it is not written down, it did not happen”. In Miller & Another v Health Service Commissioner for England [2018] EWCA Civ 144, the Court of Appeal considered a decision made by the Health Service Commissioner for England in relation to a complaint about medical treatment. Gloster  LJ referred in her judgment to “an unfortunate use of language” on behalf of the Commissioner’s Director. The Judge said:

“…when he said “if it is not written down it didn’t happen unless there is other corroborating evidence”. I do not accept that this was an erroneous use of language. It reflected the practice of and language used by officials in the documents to which this court was taken, i.e. unless the doctor had noted something in the clinical records, poor practice is assumed… that is an inappropriate way to conduct an investigation…”

Nonetheless, if a discussion about risks and benefits of the operation is not on the consent form, arguing that this information was given to the patient at an earlier appointment when the decision was actually taken leaves doctors vulnerable to challenge and can lead to patients being confused.  It is far better to record the information which is given to the patient at the point it is given, not by someone else at a later date.  It is far better for the information to be recorded on an PDF at the out-patient stage and then the same form is reconsidered at the pre-op stage.  That will allow the doctor at the pre-op stage to know what risks the patient has already been warned about and so is a better clinical governance process than starting from scratch.

Fifthly, it means that doctors working with the patient at a later stage of the process will have an easily accessible record or what information has been given to the patient at an earlier stage and can see for themselves if proper risks and benefits have been discussed o whether there are things that have been missed.

I would like to express my thanks to Professor Emily Jackson of LSE, and to barristers, Hannah Gibbs and Miranda Butler, who have read and provided feedback on drafts of this lecture. I am solely responsible for the text and any errors.

David Lock is a barrister and QC specialising in medical law at Landmark Chambers. He is also a Visiting Professor in Practice at the London School of Economics.

[1] The observations in the lecture apply equally to male doctors.

[2] I wonder if this is the first time that a cultural reference to the 1967 film has made it into an LSE lecture?

[3] Principles of Medical Law (OUP:  4th edition at §8.01.

[4] See Schloendorff v Society of New York Hospital (1914) 211 NY 215, cited with approval by Lord Goff in Re F [1989] 2 All ER 545 at p564.

[5] Where the patient is a child, decision making is shared between those with parental responsibility and the child.  If the child is Gillick competent, the child has the right to make their own decisions.  However, the parents have concurrent rights to be a decision maker but they cannot use that right to override the decision of the Gillick competent child:  see Bell & Anor v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 which approved AB v. CD [2021] EWHC 741 (Fam).  The High Court has the right to overrule the Gillick competent child and require the child to have refused treatment.

[6] See Re B [1997] 2 FLR 426 at p432.

[7] I make no comment on whether the loss of a job would be lawful or not or whether it would be ethically justified or unjustified.  But it is a fact that non-vaccination will imperil some people’s employment.

[8] I am concentrating on consent issues in hospitals but the same principles apply in other areas including general practice.

[9] [2015] UKSC 11.

[10] This assumption can be misplaced.  In the days of the internet and in particular where patients have a complex long term condition, the fully informed patient who understands the risks and benefits from a medical procedure is increasingly common.  The doctor’s duty is the same but the conversation can be very different.

[11] See https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/decision-making-and-consent/the-dialogue-leading-to-a-decision

[12] I am grateful to various medical colleagues who have read drafts of this lecture for providing this information.

[13] See (2006) 333 British Medical Journal 528

[14] It goes without saying that doctors could refer to this between themselves as a PDF form, but part of the purpose would be lost if that term was used in front of patients.

[15] (1993) Fam 15.

[16] See [2006] 1 FLR 652.

[17] Ibid at §8.36.

[18] There is an analogy here with the law of contract.  In the law of contract, the state of a person’s mind is a matter of fact where, if pressed, the court can reach a final decision.

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