Professionalism in nursing 4: record keeping, consent and capacity

Good record keeping, obtaining patients’ consent and assessing their capacity are integral parts of a nurse’s role and have legal, ethical and professional implications. This is a Journal Club article and comes with a handout that you can download and distribute for a journal club discussion.

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Abstract

Record keeping is an essential part of a nurse’s role and can have both ethical and legal implications; however, common errors and omissions persist. This article is part four in a series on professionalism and, as well as exploring good record keeping, it discusses patient consent and capacity. Consent can be informed, implied, verbal or written, depending on the situation, and must be documented in the patient’s notes. Capacity legislation must be followed to ensure a patient is able to make their own informed decisions.

Citation: Creighton L et al (2022) Professionalism in nursing 4: record keeping, consent and capacity; Nursing Times [online]; 118: 7.

Authors: Laura Creighton, Alison Smart, Nuala Devlin and Joanne Blair are all lecturers in education, Queen’s University Belfast.

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Introduction

This article – the fourth in a series on professionalism in nursing – discusses the importance of good record keeping, acquiring patients’ consent and assessing their mental capacity. It explores the legal, ethical and professional implications of these essential parts of nursing.

Record keeping in healthcare

Record keeping is integral to the role of the nurse. It is a recurrent theme throughout the Nursing and Midwifery Council (NMC)’s (2018) Code, and the importance of good record keeping is reiterated from 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’. However, despite this instruction, poor record keeping remains one of the top five reasons 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 proceedings. Conversely, poor records may have a negative effect on care delivery, with pertinent information not being documented 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.

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

  A recent study at a large acute trust found that patient care information was 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 misunderstanding. The terminology used can also often be confusing, especially for student nurses.

  For example, the terms ‘responsibility’ and ‘accountability’ should not be used interchangeably, although this often occurs (Devlin and Duggan, 2020). Responsibility 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 relationship 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 professional 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 medical notes, Kardexes, pathology reports, nursing notes and any other documents that may be relevant to the case. Using professional language to describe an incident and being factual will increase the credibility of your account; making subjective comments about a patient is neither professional 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 preserving safety, it focuses on duty of candour: “You make sure that patient and public safety is not affected. You work within the limits of your competence, exercising your professional ‘duty of candour’ 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 concerns where appropriate.”

  Following Francis’s (2013) report on many patient failures in the NHS, there was a realisation that this duty of candour needed to be addressed. Since 2014, all organisations in England that are registered with the Care Quality Commission are bound by a statutory duty of candour under the Care Act 2014. Similar provisions came into force in Scotland in 2018, a bill has been prepared to bring the duty into effect in Wales, and in Northern Ireland a public consultation closed in August 2021 as part of the recommendations of Donaldson et al’s (2014) report.

  Nurses are bound by both a statutory and a professional duty of candour in practice. Guidance published jointly by the General Medical Council and the NMC (2015) stated that all registrants should be open and honest with their patients about all aspects of their care and treatment, especially when things do not go to plan.

  Patient consent

  In healthcare, consent means gaining permission from a patient or client to carry out care or a procedure; they must give permission before any nursing activity is done. How consent is given and deemed valid is one of the most vital factors in healthcare, so understanding it is paramount. Consent allows patients to voluntarily make informed decisions about the care they are given; it also creates boundaries for staff.

  There are four forms of consent:

  • Informed;
  • Implied;
  • Verbal;
  • Written.

  Informed consent arose following the transition from paternalistic medicine to patient-centred decision making, in which patients can consent to or decline a proposed treatment. The NHS (2019) outlined that, for consent to be informed, the patient must be given all the information about what a treatment involves, including:

  • The benefits and risks;
  • Whether there are reasonable alternative treatments;
  • What will happen if treatment does not go ahead.

  Based on the information provided, the patient can then come to their own decision, voluntarily and without influence or coercion from others.

  Box 2 illustrates an example of implied consent. There is no verbal or written interaction, but the patient consents to the test through an action. This often occurs with healthcare activities that are repetitive for or familiar to the patient – for example, recording blood pressure or administering daily injections, such as anticoagulants. Griffith and Dowie (2019) suggested that a weakness of implied consent is that it is not always obvious if the patient is not agreeing to what the nurse intends to do. This must be taken into consideration and any ambiguity clarified.

  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.

  Verbal consent means the patient consents to, or declines, the proposed nursing activity using speech. Written consent is when a signature is obtained from the patient, indicating that they either consent 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 standardised 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.

  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

  Validity of consent

  Valid consent must be obtained before providing 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, preserve safety, and promote professionalism and trust. Although all the Code’s standards should be met, there are two that specifically relate to consent.

  • Standard 2.5: “respect, support and document a person’s right to accept or refuse care and treatment”. This can be a difficult concept to understand. As nurses, we always work in the best interests of our patients but, because a patient can make their own decisions about care and treatment, they have the right to decline treatment by refusing or withdrawing consent, despite knowing the potential risks. An example of this is a patient who does not believe in the use of vaccinations: the vaccination could offer protection but, if they are aware of the consequences of refusal and are mentally competent, they can refuse to consent;
  • Standard 4.2: “make sure that you get properly informed consent and document it before carrying out any action”. In practice, the consequences of not gaining consent could have legal implications and, therefore, lead to fitness-to-practise enquiries.

  Autonomy refers to an individual’s right to make choices about their care or treatment. This is embedded in law; adults generally have a presumed right to decide what happens to their body (Taylor, 2018b). It is generally unlawful to touch someone else unless they have consented to it, which is where the law may impact on a nurse. If a nurse puts their hands on a patient without obtaining consent, legally this could be regarded as assault and could lead to legal proceedings if the patient were to pursue a case.

  Respecting a patient’s right to refuse treatment or care is difficult, but disregarding their decision and continuing to treat usually goes against the ethical principles of non-maleficence and beneficence. In this situation, the principle from medical ethics of ‘do no harm’ may refer to causing the patient psychological rather than physical harm, depending on their reason for deciding that treatment is not in their best interests and declining. Patients have the right to withdraw consent at any time, and this decision must be respected.

  Following a recent case – namely, ‘Montgomery v Lanarkshire Health Board’, 2015 – informed consent is legally upheld, meaning patients have a legal right to all information relating to treatment; this includes all risks and benefits, no matter how small.

  Although both the NMC’s (2018) Code and the law state that consent should be obtained, there are exceptions to this. Consent is not needed:

  • In the case of emergency treatment;
  • For an emergency procedure during an operation;
  • If a person has a severe mental health condition and lacks capacity;
  • If a person is a risk to public health due to a contagious disease;
  • If a person is severely ill and living in unhygienic conditions, in which case they can be removed to sanitary conditions under the National Assistance Act 1948.

  Patient capacity

  Capacity refers to an individual’s ability to understand information and, by doing so, use it to make informed decisions. There is an assumption in law that a person has the necessary capacity to make their own decisions unless it is proven otherwise; in healthcare, this means that, unless there is evidence to suggest a patient lacks capacity, no one can make decisions on their behalf (Moye and Wood, 2020).

  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 comprehensive 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 competent 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 decision, 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 guidance on the legislation around consent and the capacity to make decisions.

  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?

  It is important to note that the legislation’s guidance that individuals must be assumed to have capacity applies only to adults, not children. A child aged

  Following the case of ‘Gillick v West Norfolk and Wisbech Area Health Authority’, 1986, however, a child can be assessed for ‘Gillick competence’, meaning they can consent to their own treatment; this is a complex 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 competent, the child must also be able to provide a clear rationale for their 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 relevant laws about mental capacity that apply in the country in which [they] are practising and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process” (standard 4.3).

  As this standard highlights, 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.

  Key points

  • Record keeping is integral to the nurse’s role, but common errors are made
  • Poor record keeping can result in professional or legal implications for nurses
  • Consent can be implied, informed, verbal or written, and must be obtained before carrying out care
  • Mental capacity is an individual’s ability to understand information and use it to make informed decisions
  • Legislation states how patients’ mental capacity should be assessed

  Also in this series

  • Professionalism in nursing 1: how to develop professional values
  • Professionalism in nursing 2: working as part of a team
  • Professionalism in nursing 3: the value of self-care for students
  • Professionalism in nursing 5: social media and e-professionalism
  • Professionalism in nursing 6: the nurse as innovator

  References

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  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.