Consent To Treatment

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Introduction

Consent To Treatment

Consent to treatment is the principle that a person must give permission before they receive any type of medical treatment, test or examination. This must be done on the basis of an explanation by a clinician.

Consent from a patient is needed regardless of the procedure - whether it's a physical examination, organ donation or something else. The principle of consent is an important part of medical ethics and the international human rights law.

This topic covers:

Defining consent

How consent is given

Consent from children and young people

When consent isn't needed

Consent and life-sustaining treatment

Complaints

Defining consent

For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision. These terms are explained below:

  • Voluntary - the decision to either consent or not to consent to treatment must be made by the person themselves, and must not be influenced by pressure from medical staff, friends or family.
  • Informed - the person must be given all of the information in terms of what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments and what will happen if treatment doesn't go ahead.
  • Capacity - the person must be capable of giving consent, which means they understand the information given to them, and they can use it to make an informed decision.

If an adult has the capacity to make a voluntary and informed decision to consent to or refuse a particular treatment, their decision must be respected. This is still the case even if refusing treatment would result in their death, or the death of their unborn child.

If a person doesn't have the capacity to make a decision about their treatment, the healthcare professionals treating them can go ahead and give treatment if they believe it's in the person's best interests.

However, the clinicians must take reasonable steps to seek advice from the patient's friends or relatives before making these decisions.

Read more about assessing the capacity to consent.

How consent is given

Consent can be given:

  • verbally - for example, by saying they're happy to have an X-ray
  • in writing - for example, by signing a consent form for surgery

Someone could also give non-verbal consent, as long as they understand the treatment or examination about to take place - for example, holding out an arm for a blood test.

Consent should be given to the healthcare professional directly responsible for the person's current treatment, such as:

  • a nurse arranging a blood test
  • a GP prescribing new medication
  • a surgeon planning an operation

If someone is going to have a major medical procedure, such as an operation, their consent should ideally be secured well in advance, so they have plenty of time to obtain information about the procedure and ask questions.

If they change their mind at any point before the procedure, the person is entitled to withdraw their previous consent.

Consent from children and young people

If they're able to, consent is usually given by patients themselves.

However, someone with parental responsibility may need to give consent for a child up to the age of 16 to have treatment.

Read more about the rules of consent applying to children and young people

When consent isn't needed

There are a few exceptions when treatment may be able to go ahead without the person's consent, even if they're capable of giving their permission.

It may not be necessary to obtain consent if a person:

  • requires emergency treatment to save their life, but they're incapacitated (for example, they're unconscious) - the reasons why treatment was necessary should be fully explained once they've recovered
  • immediately requires an additional emergency procedure during an operation - there has to be a clear medical reason why it would be unsafe to wait to obtain consent, and it can't be simply for convenience
  • with a severe mental health condition such as schizophrenia, bipolar disorder or dementia lacks the capacity to consent to the treatment of their mental health (under the Mental Health Act 1983) - in these cases, treatment for unrelated physical conditions still requires consent, which the patient may be able to provide, despite their mental illness
  • requires hospital treatment for a severe mental health condition, but self-harmed or attempted suicide while competent and is refusing treatment (under the Mental Health Act 1983- the person's nearest relative or an approved social worker must make an application for the person to be forcibly kept in hospital, and two doctors must assess the person's condition
  • is a risk to public health (due to rabies, cholera or tuberculosis (TB)
  • is severely ill and living in unhygienic conditions (under the National Assistance Act 1948- a person who is severely ill or infirm and is living in unsanitary conditions can be taken to a place of care without their consent

Consent and life-sustaining treatments

A person may be being kept alive with supportive treatments - such as lung ventilation - without having made an advance decision, which outlines the care they would refuse to receive.

In these cases, a decision about continuing or stopping treatment needs to be made based on what that person's best interests are believed to be.

To help reach a decision, the healthcare professionals responsible for the person's care should discuss the issue with the relatives and friends of the person receiving the treatment.

They should consider, among other things:

  • what the person's quality of life will be if treatment is continued
  • how long the person may live if treatment is continued
  • whether there's any chance of the person recovering

Treatment can be withdrawn if there's an agreement that continuing treatment isn't in the person's best interests. The case will be referred to the courts before further action is taken if:

  • an agreement can't be reached
  • a decision has to be made on whether to withdraw treatment from someone who has been in a state of impaired consciousness for a long time (usually at least 12 months)

It's important to note the difference between withdrawing a person's life support and taking a deliberate action to make them die. For example, injecting a lethal drug would illegal.

Complaints

If you believe you've received treatment you didn't consent to, you can make an official complaint.

Read more about how to make a complaint.


Capacity

Assessing capacity

All adults are presumed to have sufficient capacity to decide on their own medical treatment, unless there's significant evidence to suggest otherwise.

What is "capacity"?

"Capacity" means the ability to use and understand information to make a decision, and communicate any decision made.

A person lacks capacity if their mind is impaired or disturbed in some way, and this means the person is unable to make a decision at that time.

Examples of how a person's brain or mind may be impaired include:

  • mental health conditions such as schizophrenia or bipolar disorder
  • dementia
  • severe learning disabilities
  • brain damage for example, from a stroke or other brain injury
  • physical or mental conditions that cause confusion, drowsiness or a loss of consciousness
  • intoxication caused by drug or alcohol misuse

Someone with such an impairment is thought to be unable to make a decision if they can't:

  • understand information about the decision
  • remember that information
  • use that information to make a decision
  • communicate their decision by talking, using sign language or by any other means 

How capacity is assessed

As capacity can sometimes change over time, it should be assessed at the time that consent is required.

This will usually be done by an appropriately trained and experienced health professional who is either:

  • recommending the treatment or investigation
  • involved in carrying it out

If the health professional feels you have the capacity to give your consent, your decision will be accepted and your wishes will continue to be respected, even if you lose capacity at a later stage.

If the health professional feels you don't currently have the capacity to give consent, and you haven't made an advance decision or formally appointed anyone to make decisions for you, they'll need to carefully consider what's in your best interests before making a decision.

Respecting personal beliefs

If someone makes a decision about treatment that other people would consider to be irrational, it doesn't necessarily mean they have a lack of capacity, as long as they understand the reality of their situation.

For example, a person who refuses to have a blood transfusion because it's against their religious beliefs wouldn't be thought to lack capacity. They still understand the reality of their situation and the consequences of their actions.

However, someone with anorexia who is severely malnourished and rejects treatment because they refuse to accept there's anything wrong with them would be considered incapable. This is because they're regarded as not fully understanding the reality of their situation, or their consequences.

Determining a person's "best interests"

If an adult lacks the capacity to give consent, a decision on whether to go ahead with the treatment will need to be made by the health professionals treating them. To make a decision, the person's "best interests" must be considered.

There are many important elements involved in trying to determine what a person's best interests are, including:

  • considering whether it's safe to wait until the person can give consent, if it's likely they could regain capacity at a later stage
  • involving the person in the decision as much as possible
  • trying to identify any issues the person would take into account if they were making the decision themselves, including religious or moral beliefs; these would be based on views the person expressed previously, as well as any insight close relatives or friends can offer

If a person is felt to lack capacity, and there's no one suitable to help make decisions about medical treatment, such as family members or friends, an independent mental capacity advocate (IMCA) must be consulted.

Involving the Court of Protection

In situations where there's serious doubt or dispute about what's in an incapacitated person's best interests, healthcare professionals can refer the case to the Court of Protection for a ruling. This is the legal body that oversees the operation of the Mental Capacity Act (2005).

Situations that must always be referred to the courts include:

  • sterilisation for contraceptive purposes
  • donation of organs or regenerative tissue, such as bone marrow
  • withdrawal of nutrition and hydration from a person who's in a permanent vegetative state or minimally conscious state

Changes in capacity

A person's capacity to consent can change. For example, they may have the capacity to make some decisions but not others, or their capacity may come and go.

In some cases, people can be considered capable of deciding some aspects of their treatment but not others. For example, a person with severe learning difficulties may be capable of deciding on their day-to-day treatment, but incapable of understanding the complexities of their long-term treatment.

Some people with certain health conditions may have periods when they're capable and periods when they're incapable. For example, a person with schizophrenia may have psychotic episodes (when they can't distinguish between reality and fantasy), during which they may not be capable of making certain decisions.

A person's capacity can also be temporarily affected by:

  • shock
  • panic
  • fatigue (extreme tiredness)
  • medication

Advance decisions and power of attorney

If a person knows their capacity to consent may be affected in the future, they can choose to draw up a legally binding advance decision (also known as a living will). This sets out the procedures and treatments that a person refuses to undergo.

You can also choose to formally arrange for someone, often a close family member, to have lasting power of attorney (LPA) if you wish to anticipate your loss of capacity to make important decisions at a later stage. Someone with LPA can make decisions about your health on your behalf, although you can choose to specify in advance certain treatments that you would like them to refuse.

 

Children-under-16

Children and young people

People aged 16 or over are entitled to consent to their own treatment, and this can only be overruled in exceptional circumstances.

Like adults, young people (aged 16 or 17) are presumed to have sufficient capacity to decide on their own medical treatment, unless there's significant evidence to suggest otherwise.

Children under the age of 16 can consent to their own treatment if they're believed to have enough intelligence, competence and understanding to fully appreciate what's involved in their treatment. This is known as being "Gillick competent".

Read about: Does my child have the right to refuse treatment?

Otherwise, someone with "parental responsibility" can consent for them. This could be:

  • the child's mother or father
  • the child's legally appointed guardian
  • a person with a residence order concerning the child
  • a local authority designated to care for the child
  • a local authority or person with an emergency protection order for the child

Parental responsibility

The person with parental responsibility must have the capacity to give consent.

If a parent refuses to give consent to a particular treatment, this decision can be overruled by the courts if treatment is thought to be in the best interests of the child.

If one person with parental responsibility gives consent and another doesn't, the healthcare professionals can choose to accept the consent and perform the treatment in most cases.

If the people with parental responsibility disagree about what's in the child's best interests, the courts can make a decision.

In an emergency, where treatment is vital and waiting to obtain parental consent would place the child at risk, treatment can proceed without consent.

When consent can be overruled

If a young person refuses treatment, which may lead to their death or a severe permanent injury, their decision can be overruled by the Court of Protection. This is the legal body that oversees the operation of the Mental Capacity Act (2005).

The parents of a young person who has refused treatment may consent for them, but it's usually thought best to go through the courts in this situation.