Clinical Practice Keywords Consent/Capacity/Record

keeping/Legislation
Discussion
Professionalism This article has been
double-blind peer reviewed

In this article...
● H ow to improve patient care through good record keeping and avoid common errors
● The types, validity and legal implications of patient consent
● The importance and complexity of assessing patient capacity

Professionalism in nursing 4: record

keeping, consent and capacity
Key points
Author Laura Creighton, Alison Smart, Nuala Devlin and Joanne Blair are all lecturers
Record keeping is in education, Queen’s University Belfast.
integral to the
nurse’s role, but Abstract Record keeping is an essential part of a nurse’s role and can have both
common errors ethical and legal implications; however, common errors and omissions persist. This
NT JOURNAL are made article is part four in a series on professionalism and, as well as exploring good record
CLUB keeping, it discusses patient consent and capacity. Consent can be informed, implied,
Use this article Poor record keeping verbal or written, depending on the situation, and must be documented in the
for a journal club can result in patient’s notes. Capacity legislation must be followed to ensure a patient is able to
discussion with professional or make their own informed decisions.
colleagues. To find
legal implications
out more go to
nursingtimes.net/ for nurses Citation Creighton L et al (2022) Professionalism in nursing 4: record keeping,
NTJCHome consent and capacity; Nursing Times; 118: 7, 54-57.
Journal club Consent can be

T
participation can implied, informed,
count towards your
revalidation.
verbal or written, his article – the fourth in a series
and must be on professionalism in nursing –
obtained before discusses the importance of good
carrying out care record keeping, acquiring
patients’ consent and assessing their
Mental capacity is an mental capacity. It explores the legal, eth-
individual’s ability ical and professional implications of these
to understand essential parts of nursing.
information and use
it to make informed Record keeping in healthcare
decisions Record keeping is integral to the role of the
nurse. It is a recurrent theme throughout
Legislation states the Nursing and Midwifery Council
how patients’ mental (NMC)’s (2018) Code, and the importance
capacity should be of good record keeping is reiterated from
assessed the beginning of a nurse’s career onwards;
we are all familiar with the saying ‘if it is
not written down, it didn’t happen’. How-
ever, despite this instruction, poor record
keeping remains one of the top five rea-
sons for nurses incurring sanctions or
even being removed from the register
(Andrews and St Aubyn, 2015).
In a busy, pressurised environment,
record keeping and documentation can
often be seen as a luxury; however, our
records provide the evidence of our
involvement with patients and should be
completed after every consultation. Good
record keeping is an essential professional,
ethical and legal requirement of being a
nurse. When completed well, record
keeping can promote continuity of care
through clear communication (Davidson
and Devlin, 2012), and can later supply, if
necessary, the evidence for any legal pro-
ceedings. Conversely, poor records may
have a negative effect on care delivery, with
pertinent information not being docu-
mented or relayed to the right people.
Several standards listed in the NMC’s
(2018) Code relate directly to record
keeping (Box 1), so adhering to the Code
when writing documents should ensure
good record keeping. However, common
errors persist, including:
● Confusing facts with opinions;
● Using unclear abbreviations;
● Inaccuracies, especially dates and
times;
● Illegible handwriting;
● Using Tippex;
● Omitting times, dates or signatures;
● Delays in completing records.
A recent study at a large acute trust
found that patient care information was

Nursing Times July 2022 / Vol 118 Issue 7 54 www.nursingtimes.net

often recorded by nurses in an “inaccurate,
inconsistent, repetitive and incomplete”
way (Charalambous and Goldberg, 2016).
Abbreviations, while intended to reduce
workload, often lack clarity and serve only
to add to confusion and misunder-
standing. The terminology used can also
often be confusing, especially for student
nurses. For example, the terms ‘responsi-
bility’ and ‘accountability’ should not be
used interchangeably, although this often
occurs (Devlin and Duggan, 2020). Respon-
sibility can be defined as a set of tasks or
functions that an employer, professional
body or court of law can legitimately
demand; accountability describes the rela-
tionship between a practitioner and an
organisation (Griffith and Tengnah, 2014).
What is good record keeping?
Griffith and Tengnah (2014) reminded us
that records are never neutral: they will
either support or condemn you. The next
time you write notes, remember that you
may be relying on them as evidence in
court, because legal outcomes are based on
proof. These notes will be your profes-
sional account of the care you delivered (or
not), so it is important to be mindful of
this when you are composing them.
Any document requested by the court
becomes a legal document, including med-
ical notes, Kardexes, pathology reports,
nursing notes and any other documents
that may be relevant to the case. Using pro-
fessional language to describe an incident
and being factual will increase the credi-
bility of your account; making subjective
comments about a patient is neither profes-
sional nor ethical, for example, writing that
someone is as “blind as a bat” (Dimond,
2005). It is important to remember that
omission can also be negligence.
The Royal College of Nursing’s (2017a)
handbook details the key principles of
good record keeping. The NHS (2021) has
also stipulated key practices of record
management. Additionally, the NMC’s
(2018) Code explores the intricacies of
record keeping and, in discussing pre-
serving safety, it focuses on duty of can-
dour: “You make sure that patient and
public safety is not affected. You work
within the limits of your competence,
exercising your professional ‘duty of can-
dour’ and raising concerns immediately
whenever you come across situations that
put patients or public safety at risk. You
take necessary action to deal with any con-
cerns where appropriate.”
Following Francis’s (2013) report on
many patient failures in the NHS, there was
Nursing Times July 2022 / Vol 118 Issue 7
a realisation that this duty of candour There are four forms of consent:
needed to be addressed. Since 2014, all ● Informed;
organisations in England that are registered ● Implied;
with the Care Quality Commission are ● Verbal;
bound by a statutory duty of candour under ● Written.
the Care Act 2014. Similar provisions came Informed consent arose following the
into force in Scotland in 2018, a bill has been transition from paternalistic medicine to
prepared to bring the duty into effect in patient-centred decision making, in which
Wales, and in Northern Ireland a public patients can consent to or decline a pro-
consultation closed in August 2021 as part posed treatment. The NHS (2019) outlined
of the recommendations of Donaldson et that, for consent to be informed, the
al’s (2014) report. patient must be given all the information
Nurses are bound by both a statutory about what a treatment involves, including:
and a professional duty of candour in prac- ● The benefits and risks;
tice. Guidance published jointly by the ● Whether there are reasonable
General Medical Council and the NMC alternative treatments;
(2015) stated that all registrants should be ● What will happen if treatment does not
open and honest with their patients about go ahead.
all aspects of their care and treatment, Based on the information provided, the
especially when things do not go to plan. patient can then come to their own deci-
sion, voluntarily and without influence or
Patient consent coercion from others.
In healthcare, consent means gaining per- Box 2 illustrates an example of implied
mission from a patient or client to carry out consent. There is no verbal or written inter-
care or a procedure; they must give permis- action, but the patient consents to the test
sion before any nursing activity is done. through an action. This often occurs with
How consent is given and deemed valid is healthcare activities that are repetitive for
one of the most vital factors in healthcare, or familiar to the patient – for example,
so understanding it is paramount. Consent recording blood pressure or administering
allows patients to voluntarily make daily injections, such as anticoagulants.
informed decisions about the care they are Griffith and Dowie (2019) suggested that a
given; it also creates boundaries for staff. weakness of implied consent is that it is not
Box 1. The Nursing and Midwifery Council’s (2018) standards
directly related to record keeping
Prioritise people
● 4.2 Make sure that you get properly informed consent and document it before
carrying out any action
Practise effectively
● 7.1 Use terms that people in your care, colleagues and the public can understand
● 10 Keep clear and accurate records relevant to your practice. This applies to the
records that are relevant to your scope of practice. It includes, but is not limited to,
patient records. To achieve this, you must:
● 10.1 Complete all records at the time or as soon as possible after an event,
recording if the notes are written sometime after the event
● 10.2 Identify any risks or problems that have arisen, and the steps taken to deal with
them, so that colleagues who use the records have all the information they need
● 10.3 Complete all records accurately and without any falsification, taking
immediate and appropriate action if you become aware that someone has not
kept to these requirements
● 10.4 Attribute any entries you make in any paper or electronic records to yourself,
making sure they are clearly written, dated and timed, and do not include
unnecessary abbreviations, jargon or speculation
● 10.5 Take all steps to make sure that all records are kept securely
● 10.6 Collect, treat and store all data and research findings appropriately
Preserve safety
● 14.3 Document all these events formally and take further action (escalate) if
appropriate so they can be dealt with quickly
55 www.nursingtimes.net
Clinical Practice
Discussion
Box 2. Example of implied consent
You are on a clinical placement in an endocrinology ward. You need to ascertain
Mr Khan’s blood–sugar level, as he has type 1 diabetes and will need insulin to be
administered. You approach Mr Khan and ask him whether you could check his
blood–sugar levels. Without comment, Mr Khan extends his finger for you to check.
always obvious if the patient is not agreeing
to what the nurse intends to do. This must
be taken into consideration and any ambi-
guity clarified.
Verbal consent means the patient con-
sents to, or declines, the proposed nursing
activity using speech. Written consent is
when a signature is obtained from the
patient, indicating that they either con-
sent or decline. This is commonly used for
high-risk procedures, such as surgical
operations or the use of anaesthesia, and is
carried out by the medical staff carrying
out the procedure. The Department of
Health (DH) (2009) published standard-
ised consent forms that are used for
written consent in healthcare settings in
the UK.
Box 3 asks you to consider when each of
the four types of consent would be used.
Validity of consent
Valid consent must be obtained before pro-
viding care or treatment, or starting an
examination or physical investigation
(Royal College of Nursing, 2017b). Griffith
and Dowie (2019) suggested that, to be
valid, consent must be given voluntarily by
a mentally competent person without any
duress or fraud. The NHS (2019) added that:
● The patient must have received
sufficient information on which to base
their decision;
● The patient must be able to
communicate their decision;
● No adult can consent on behalf of
another adult.
The DH (2012) coined the phrase ‘no
decision about me, without me’, meaning
that no decision should be made about a
patient without them being at the centre of
it, and involved. Any form of consent you
obtain – whether it is informed, implied,
written or verbal – should be documented
in the nursing notes contemporaneously,
as per the NMC’s (2018) guidance on record
keeping. Acquiring valid and informed
consent is a professional, ethical and legal
obligation (Taylor, 2018a).
Implications of consent
The NMC’s (2018) Code has four aspects:
prioritise people, practise effectively, pre-
serve safety, and promote professionalism
Nursing Times July 2022 / Vol 118 Issue 7
Respecting a patient’s right to refuse
treatment or care is difficult, but disre-
garding their decision and continuing to
treat usually goes against the ethical prin-
ciples of non-maleficence and benefi-
cence. In this situation, the principle from
medical ethics of ‘do no harm’ may refer to
causing the patient psychological rather
and trust. Although all the Code’s stand- than physical harm, depending on their
ards should be met, there are two that spe- reason for deciding that treatment is not in
cifically relate to consent. their best interests and declining. Patients
● Standard 2.5: “respect, support and have the right to withdraw consent at any
document a person’s right to accept or time, and this decision must be respected.
refuse care and treatment”. This can be a Following a recent case – namely,
difficult concept to understand. As ‘Montgomery v Lanarkshire Health Board’,
nurses, we always work in the best 2015 – informed consent is legally upheld,
interests of our patients but, because a meaning patients have a legal right to all
patient can make their own decisions information relating to treatment; this
about care and treatment, they have the includes all risks and benefits, no matter
right to decline treatment by refusing or how small.
withdrawing consent, despite knowing Although both the NMC’s (2018) Code
the potential risks. An example of this is and the law state that consent should be
a patient who does not believe in the use obtained, there are exceptions to this. Con-
of vaccinations: the vaccination could sent is not needed:
offer protection but, if they are aware of ● In the case of emergency treatment;
the consequences of refusal and are ● For an emergency procedure during an
mentally competent, they can refuse operation;
to consent; ● If a person has a severe mental health
● Standard 4.2: “make sure that you get condition and lacks capacity;
properly informed consent and ● If a person is a risk to public health due
document it before carrying out any to a contagious disease;
action”. In practice, the consequences ● If a person is severely ill and living in
of not gaining consent could have legal unhygienic conditions, in which case
implications and, therefore, lead to they can be removed to sanitary
fitness-to-practise enquiries. conditions under the National
Autonomy refers to an individual’s Assistance Act 1948.
right to make choices about their care or
treatment. This is embedded in law; adults Patient capacity
generally have a presumed right to decide Capacity refers to an individual’s ability to
what happens to their body (Taylor, 2018b). understand information and, by doing so,
It is generally unlawful to touch someone use it to make informed decisions. There is
else unless they have consented to it, an assumption in law that a person has the
which is where the law may impact on a necessary capacity to make their own deci-
nurse. If a nurse puts their hands on a sions unless it is proven otherwise; in
patient without obtaining consent, legally healthcare, this means that, unless there is
this could be regarded as assault and could evidence to suggest a patient lacks
lead to legal proceedings if the patient capacity, no one can make decisions on
were to pursue a case. their behalf (Moye and Wood, 2020).
Box 3. Task: which type of consent?
Consider the type of consent to use in the following scenarios:
● A patient is set to undergo an exploratory laparotomy
● A patient’s vital signs need to be obtained
● A patient needs to be given medication as part of a research study
● A patient is at risk of pressure damage, so you and another member of staff go to
reposition them
● A patient opens their mouth for mouth care when you lift the sponge
● A patient needs a wound to be surgically drained
● A patient needs a tooth extraction under anaesthetic
● A patient’s leg ulcers need to be redressed
56 www.nursingtimes.net
 The countries of the UK are guided by
different legislation on capacity:
● England and Wales – Mental Capacity
Act 2005;
● Scotland – Adults with Incapacity
(Scotland) Act 2000;
● Northern Ireland – Mental Capacity Act
(Northern Ireland) 2016.
This ensures the nations all have a com-
prehensive framework to help with the
assessment of mental capacity. The core
principles are similar across the countries:
● An individual must be assumed to have
capacity unless proven otherwise;
● An individual should be helped to make
their own decisions as far as is
practicable;
● An individual is not to be treated as
lacking the capacity to make a decision
because they choose to make an unwise
decision;
● If capacity is deemed to be lacking, all
decisions made and actions taken on
the individual’s behalf must be in the
best interests of the individual;
● All decisions and actions taken must be
the least restrictive of the individual’s
rights and freedom of action.
Ratcliff and Chapman (2016) suggested
capacity legislation provides legal clarity
and ensures acknowledgment of people’s
fundamental rights to make decisions for
themselves. The legislation recognises that
an individual may, either permanently or
temporarily, lack capacity, and that it is
entirely possible for service users to be com-
petent to make some decisions but lack the
capacity to make others. In these instances,
a best-interests decision should be made
that offers the least-restrictive actions and
considers the individual’s human rights.
Mental capacity legislation states that,
to be deemed competent to make a deci-
sion, an individual must be able to:
● Understand the information relevant to
the decision;
● Retain the information;
● Use or weigh up the information;
● Communicate their decision (by any
means).
The legislation uses a two-step method
to assess whether an individual has capacity
(Box 4). The NHS (2019) provides clear guid-
ance on the legislation around consent and
the capacity to make decisions.
It is important to note that the legisla-
tion’s guidance that individuals must be
assumed to have capacity applies only to
adults, not children. A child aged <16 years
is deemed by law to lack capacity; someone
with parental responsibility must consent
for them.
Nursing Times July 2022 / Vol 118 Issue 7
Following the case of ‘Gillick v West Nor-
folk and Wisbech Area Health Authority’,
1986, however, a child can be assessed for
‘Gillick competence’, meaning they can con-
sent to their own treatment; this is a com-
plex process that considers many factors,
including age, maturity and mental
capacity (NHS, 2019). The child’s ability to
demonstrate understanding of the decision
they are making – including its advantages,
disadvantages and potential long-term
impact – is also assessed. To be Gillick com-
petent, the child must also be able to pro-
vide a clear rationale for their decision.
Box 4. Two-step capacity test
1. Is there an impairment of, or
disturbance to, the functioning of
the mind or brain?
2. Is the impairment or disturbance
sufficient that the person is unable
to make this specific decision?
Why is capacity important in nursing?
Capacity legislation is relevant across all
fields of nursing as nurses will routinely
encounter patients/service users affected by:
● Cognitive impairments, such as brain
injury or dementia;
● Learning disabilities;
● Mental illness;
● Altered levels of consciousness, for
example during surgery or seizure
activity;
● Impairment caused by drugs or alcohol.
Capacity is derived from the principles
of autonomy and self-determination; as
such, it is important that nurses recognise
their role in making sure they support
individuals to make their own informed
decisions. There is no doubt that assessing
capacity can be challenging, and the fact
that an individual can have capacity in
some areas but not in others adds to this
challenge (Ratcliff and Chapman, 2016).
The NMC’s (2018) Code discusses the
importance and complexity of capacity. It
states that nurses must “balance the need to
act in the best interests of people at all times
with the requirement to respect a person’s
right to accept or refuse treatment”
(standard 4.1), “avoid making assumptions
and recognise diversity and individual
choice” (standard 1.3), and “keep to all rele-
vant laws about mental capacity that apply
in the country in which [they] are practising
and make sure that the rights and best inter-
ests of those who lack capacity are still at
the centre of the decision-making process”
(standard 4.3). As this standard highlights,
57
it is not always possible for a patient to be
involved in all aspects of decision making,
but in this situation you could consider
whether there are smaller decisions they
could make to make sure they remain
involved in their care. NT
● The fifth article in this series will consider
issues relating to e-professionalism and the
use of social media for nurses.
References
Andrews A, St Aubyn B (2015) “If it’s not written
down; it didn’t happen...”. Journal of Community
Nursing; 29: 5, 20-22.
Charalambous L, Goldberg S (2016) ‘Gaps,
mishaps and overlaps’. Nursing documentation:
how does it affect care? Journal of Research in
Nursing; 21: 8, 8638-8648.
Davidson M, Devlin N (2012) Practice education
facilitator, mentor and student – supporting the
planning of care. In: Corkin D et al (eds) Care
Planning in Children and Young People’s Nursing.
Wiley Blackwell.
Department of Health (2012) Liberating the NHS:
No Decision About Me, Without Me - Government
Response. DH.
Department of Health (2009) Reference Guide to
Consent for Examination or Treatment. DH.
Devlin N, Duggan S (2020) An evaluation of
nurses’ experiences of mentoring pre-registration
students. British Journal of Nursing; 29: 5, 308-313.
Dimond B (2005) Legal Aspects of Nursing. Pearson.
Donaldson L et al (2014) The Right Time, the Right
Place. DH.
Francis R (2013) Report of the Mid Staffordshire NHS
Foundation Trust Public Inquiry. The Stationery Office.
General Medical Council, Nursing and Midwifery
Council (2015) Openness and Honesty when
Things Go Wrong: The Professional Duty of
Candour. GMC and NMC.
Gillick v West Norfolk and Wisbech Area Health
Authority (1986) Court of Appeal, 112: pp 118A.
Griffith R, Dowie I (2019) Dimond’s Legal Aspects
of Nursing: A Definitive Guide to Law for Nurses.
Pearson.
Griffith R, Tengnah C (2014) Law and Professional
Issues in Nursing. Learning Matters.
Montgomery v Lanarkshire Health Board (2015)
The Supreme Court, case 11. supremecourt.uk.
Moye J, Wood E (2020) Understanding legal and
clinical capacities. In: Moye J (ed) Assessing
Capacities of Older Adults: a Casebook to Guide
Difficult Decisions. American Psychological
Association.
NHS (2021) Records Management Code of
Practice 2021: A Guide to the Management of
Health and Care Records. NHS.
NHS (2019) Consent to treatment. nhs.uk,
29 March (accessed 11 May 2022).
Nursing and Midwifery Council (2018) The Code:
Professional Standards of Practice and Behaviour
for Nurses, Midwives and Nursing Associates. NMC.
Ratcliff D, Chapman M (2016) Health and social care
practitioners’ experiences of assessing mental
capacity in a community learning disability team.
British Journal of Learning Disabilities; 44: 4, 329-336.
Royal College of Nursing (2017a) Record Keeping:
The Facts. RCN.
Royal College of Nursing (2017b) Principles of
consent: guidance for nursing staff. British Journal
of Healthcare Assistants; 11: 10, 498-502.
Taylor H (2018a) Informed consent 2: assessing
validity, capacity and necessity. Nursing Times
[online]; 114: 7, 50-52.
Taylor H (2018b) Informed consent 1: legal basis
and implications for practice. Nursing Times
[online]; 114: 6, 25-28.
www.nursingtimes.net