The seeking and giving of consent should not be a one-off event. It should be a continual process of communication between yourself and your healthcare providers.
If you are going to have major medical intervention, such as an operation, your consent should be obtained well in advance so that you have plenty of time to study any information about the procedure. You should also have the chance to ask as many questions as you want.
Additional procedures
There may be some circumstances when, during an operation, it becomes obvious that you would benefit from an additional procedure that was not included in your original consent.
For example, you may be having abdominal surgery when your surgeon notices that your appendix is infected, dangerously close to bursting and needs to be removed.
If is felt that it would be too dangerous to delay the additional procedure and wake you up to get your consent, the additional procedure can go ahead if it is considered to be in your best interest.
However, extra procedures cannot be done just because it would be convenient for the healthcare professionals treating you. There has to be a clear medical reason why it would be unsafe to wait to obtain your consent.
Emergency treatment
If you require emergency treatment to save your life, and you are unable to give consent as a result of being physically or mentally incapacitated (for example, you are unconscious), treatment will be carried out. Once you have recovered, the reasons why treatment was necessary will be fully explained to you.
Giving consent
Consent should be obtained from the healthcare professional who is directly responsible for your current treatment. This could be:
- a nurse who is arranging a blood test
- a GP who is prescribing new medication for you
- a surgeon who is planning your operation
Consent can be given:
- verbally
- non-verbally – for example, you may raise your hand to indicate that you are happy for a nurse to take a blood sample
- in writing – by signing a consent form
A signed consent form by itself does not constitute consent; it simply serves as evidence of consent. The consent form will not be valid if your consent is:
- not voluntary
- not informed, or
- you do not have enough mental capacity (the ability to use and understand information to make a decision) to give consent
See Consent to treatment - capacity for more information about capacity and situations that can affect your capacity.
Refusing treatment
If you have enough capacity and make a voluntary and informed decision to refuse a particular treatment, your decision must be respected. This is still true even if your decision would result in your death, or the death of your unborn child.
You are still entitled to receive any other appropriate medical treatment and care that is felt would be in your best interest. However, if you ask for a course of treatment that healthcare professionals believe would not be in your best interest, they have no obligation to provide it.
Children and teenagers
Teenagers who are 16 and 17 years old are entitled to consent to their own treatment, and this consent cannot be overruled by their parents.
Children who are under 16 years old can consent to their own treatment if it is thought that they have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment.
If a child who is under 16, or a teenager who is 16 or 17 years old, refuses treatment and by doing so this may lead to their death or a severe permanent injury, their decision can be overruled by the courts. The court used is the Court of Protection, which is the legal body that oversees the operation of the Mental Capacity Act (2005).
In some cases, the parents of a child who has refused treatment have been allowed to consent for them. However, it may be best to go through the courts in such situations.
Parental responsibility
If a child who is under 16 does not have the capacity to consent, someone with parental responsibility can consent for them. See the box (left) for a list of people who can hold 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 does not, the healthcare professionals can accept the consent and perform the treatment. If the people with parental responsibility disagree about what is 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.
Exceptions
There are a number of exceptions where a capable person can be treated without first obtaining their consent. These exceptions are listed below.
- Under the Public Health (Control of Disease) Act (1984), a magistrate can order that a person is detained in hospital if they have an infectious disease that presents a risk to public health – such as rabies, cholera and anthrax.
- Under the National Assistance Act (1948), a person who is severely ill or infirm and is living in unsanitary (unclean) conditions can be taken to a place of care without their consent.
- Under the Mental Health Act (1983), people with certain mental health conditions, such as schizophrenia, bipolar disorder or dementia can be compulsorily detained at a hospital or psychiatric clinic without their consent.
Prisoners
The legal rights of prisoners are unaffected when it comes to the issue of consent. No capable prisoner can be treated without consent even if that means their life will be at risk. This includes a prisoner who is refusing to eat food.
