Overview

Consent to treatment means 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.

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.

The meaning of these terms are:

  • voluntary – the decision to either consent or not to consent to treatment must be made by the person, and not be influenced by pressure from medical staff, friends or family.
  • informed – the person must be given all of the information about what 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 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, and they have not appointed a lasting power of attorney (LPA), the healthcare professionals treating them can go ahead and give treatment if they believe it's in the person’s best interests.

But clinicians must take reasonable steps to discuss the situation with the person'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, 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 responsible for the person's treatment.

This could be a:

  • nurse arranging a blood test
  • GP prescribing new medication
  • 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 understand the procedure and ask questions.

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

Consent from children and young people

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

But 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 needs 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
  • 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 as a result of 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 support

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, healthcare professionals should discuss the issue with the relatives and friends of the person receiving the treatment.

They should consider:

  • 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 stopped 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 for someone who's been in a state of impaired consciousness for a long time (usually at least 12 months)

It's important to note the difference between stopping a person's life support and taking a deliberate action to make them die. 

For example, injecting a lethal medicine would be 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.

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Assessing capacity

All adults are presumed to have sufficient capacity to decide on their own medical treatment, unless there is 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, which means they're 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 cannot:

  • understand information about the decision
  • remember that information
  • use that information to make a decision
  • communicate their decision by talking, using sign language or 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's either:

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

If the healthcare 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 healthcare professional feels you don't currently have the capacity to give consent and you have not made an advance decision or formally appointed anyone to make decisions for you, they will need to carefully consider what is 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 does not 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 is against their religious beliefs would not be thought to lack capacity.

They still understand the reality of their situation and the consequences of their actions.

But 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 are 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 about 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.

These include:

  • considering whether it is safe to wait until the person can give consent if it is 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 is nobody 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 is serious doubt or dispute about what is 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 is 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 are capable and periods when they are incapable.

For example, a person with schizophrenia may have psychotic episodes when they cannot 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 living well.

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.

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Children and teens

People aged 16 or over are entitled to consent to their own treatment. 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 is 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.

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

A 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.

By law, healthcare professionals only need 1 person with parental responsibility to give consent for them to provide treatment.

In cases where 1 parent disagrees with the treatment, doctors are often unwilling to go against their wishes and will try to gain agreement.

If agreement about a particular treatment or what's in the child's best interests cannot be reached, the courts can make a decision.

In an emergency, where treatment is vital, and waiting for 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.

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The information on this page has been adapted by NHS Wales from original content supplied by NHS UK NHS website nhs.uk
Last Updated: 10/07/2019 11:53:54