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 due to undergo a major medical intervention, such as an operation, your consent should be sought well in advance, so that you have plenty of time to study any information relating to the procedure. You should also have the opportunity to ask as many questions as you want.
There may be some circumstances when, during an operation, it becomes obvious that you would benefit from an additional procedure that was not in the scope of your original consent. For example, you may be undergoing abdominal surgery and the 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 in order to wake you up to obtain your consent, the additional procedure can go ahead providing that it is in your best interest.
However, additional procedures cannot go ahead just because it would be convenient for the medical staff. There has to be a clear medical reason why it would be unsafe to wait and obtain your further consent.
If you require emergency treatment in order to save your life, and you are unable to give consent as a result of being physically or mentally incapacitated, treatment will be carried out. Once you recover from the treatment, the reasons why treatment was required will be fully explained to you.
How is consent given?
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, or 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, or
- in writing - by signing a consent form.
A signed consent form by itself does not constitute consent; it simply serves as evidence of consent. If your consent is not voluntarily, informed, or you do not have the sufficient mental capacity to give consent, the consent form will not be valid.
Capacity
Under the terms of the 2005 Mental Capacity Act, all adults are presumed to have sufficient capacity to decide on their own medical treatment unless there is significant evidence to suggest otherwise.
The evidence has to show that:
- a person's mind, or brain, is impaired or disturbed, and
- the impairment or disturbance means that the person is unable to make a decision at the current time.
Examples of impairments or disturbances in the mind or brain include:
- mental health conditions, such as schizophrenia or bi-polar disorder (manic depression),
- dementia,
- serious learning disabilities,
- long-term effects of brain damage,
- physical or mental conditions that cause confusion, drowsiness, or a loss of consciousness,
- delirium, and
- intoxication caused by drug or alcohol abuse.
Someone is thought to be unable to make a decision if they cannot:
- understand information about the decision,
- remember that information,
- use that information as part of their decision-making process, or
- communicate their decision by talking, using sign language, or by any other means.
If someone makes a decision about treatment that most people would consider to be irrational, it does not constitute a lack of capacity if the person making the decision understands 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 because they understand the reality of their situation, and the consequences of their actions.
However, somebody with anorexia, who is severely malnourished, yet rejects treatment because they refuse to accept that there is anything wrong with them, would be considered to be incapable because they do not understand the reality of their situation.
In some cases, people can be considered capable to decide about some aspects of their treatment, but not about others. For example, a person with severe learning difficulties may be capable of deciding about their day-to-day treatment, but be incapable of understanding the complexities of their long-term treatment.
Also, some people with certain health conditions may have periods when they are capable, and periods when they are incapable. In such circumstances, a person can make a 'living will' or 'advanced directive', stating how they would like to be treated, or not treated, in case of future incapacity.
If a person specifically states in their 'advanced directive' that they do not want to undergo a particular treatment, this is legally binding unless they are being held under the Mental Health Act.
Refusing treatment
If you have sufficient capacity and make a voluntary and informed decision to refuse a particular treatment, your decision must be respected. This is still the case if your decision would result in your death, or the death of your unborn child.
You are still entitled to any other appropriate medical treatment and care that is felt would be in your best interest.
However, if you request a course of a treatment that health care 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 of age are entitled to consent to their own treatment, and this consent cannot be overruled by their parents.
Children who are under 16 years of age can also consent to their own treatment if it thought that they have sufficient intelligence, competence, and understanding to fully appreciate what is involved in their treatment.
No one except the courts can override the consent of a child who is under 16 years of age. However, a person who has parental responsibility for a child, or teenager aged 16 or 17, can override that consent if the child refuses treatment.
Parental responsibility
The mother of a child, and the child's father (if he is married to the mother) automatically have parental responsibility. If the parents are not married, the father will have parental responsibility if he acted with the mother to have his name recorded in the registration of the child's birth, and the child's birth was registered after 1st December 2003.
An unmarried father can also obtain parental responsibility by later marrying the mother, by making a parental responsibility agreement with her, or by getting a court order.
Parental responsibility can also be granted to other people by the courts, such as a legally appointed guardian. As with other adults, people with parental responsibility can only provide, or refuse, consent if they are thought to be capable.
If a parent refuses to give consent to particular treatment, this decision can be overruled by the courts if treatment is thought to be in the best interests of the child.
In an emergency, where treatment is vital, and waiting to obtain parental consent would place the child at risk, treatment can proceed without consent.
Prisons
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.
Exceptions
There are a number of exceptions whereby a capable person can be treated without first obtaining their consent. These exceptions are listed below.
- Under the terms of the Public Health (Control of Disease) Act, a magistrate can order that a person be detained in hospital if they have an infectious disease that presents a risk to public health. Diseases that are covered by the Act include rabies, cholera, and anthrax.
- Under the terms of the National Assistance Act, a person who is severely ill, or infirm, and living in unsanitary conditions, can be taken to a place of care without their consent.
- Under the terms of the Mental Health Act, people with certain mental health conditions, such as schizophrenia, bi-polar disorder, or dementia, can be compulsorily detained at a hospital, or psychiatric clinic, without their consent.
