Consenting to treatment is not always straightforward, and a number of issues can arise. These are explained below.
Withholding information
In order to consent to a treatment or procedure, you need to be fully informed about the treatment and understand why it is considered necessary.
Healthcare professionals should not withhold information just because it may upset or unnerve you. Even if you specifically request not to be told about the extent or likely outcome of your condition, the healthcare professional has a moral and legal responsibility to provide you with at least:
- a basic overview of your condition
- the likely outcome of your condition
- your treatment options
Similarly, you will be refused any request to a healthcare professional to withhold information about a relative or friend’s condition, due to worries that it may upset them.
Mental health conditions
People with conditions that are covered by the Mental Health Act (1983), such as schizophrenia or bipolar disorder, may not have the capacity (the ability to use and understand information to make a decision) to give consent. However, this should not be taken for granted, and it needs to be assessed at the time that consent is required.
The person’s preferences should be investigated and their agreement to treatment should be sought whenever they are able to make a rational decision. These wishes should be respected if the person cannot give proper consent later on.
If the person lacks capacity and has not previously expressed their wishes, their mental health condition may be treated without consent, as may any related conditions. For example, those resulting from self-harm. Unrelated physical conditions cannot be treated without consent.
An advanced decision (previously known as an advanced directive) prohibiting certain types of treatment can be overruled if you are being held under the Mental Health Act (1983), even if you made the advanced decision when you were capable. See Consent to treatment - capacity for more information about advance decisions.
The Directgov website has more information about mental health and the Mental Health Act (1983).
Self-harm and attempted suicide
In cases of self-harm or attempted suicide where the person refuses treatment and was competent when they harmed themselves, it may be necessary to see if they can be treated without consent under the Mental Health Act (1983). This can happen if a person has a serious mental health condition that requires hospital treatment.
The person's nearest relative or an approved social worker must make an application for the person to be forcibly kept in hospital and treated. Two doctors must assess the person's condition.
If a person is kept in hospital under the Mental Health Act (1983), it does not automatically mean that they cannot agree to treatment. However, they will need to be reassessed to see whether they are capable of making an informed decision.
If a person has tried to harm themselves but does not have a mental disorder covered by the Mental Health Act (1983), unwanted treatment cannot be forced upon them. However, efforts to offer treatment must be made.
Adults without capacity
If an adult lacks capacity, any physical interventions must be in their 'best interests'. The healthcare professionals must:
- consider if it is safe to wait until the person can give consent
- involve the person in the decision as much as possible
- determine whether the person has previously expressed any opinions regarding certain procedures, perhaps on the grounds of religious or moral beliefs
- if possible, consult other people, such as the person’s immediate family
If the person has made an advance decision (see Consent to treatment - capacity) about the matter, the healthcare professionals cannot override this decision whatever the consequences. An advance decision can only be overruled if it is regarding treatment for a mental health condition and the person is being held under the Mental Health Act (1983).
In situations where there is doubt about what is in the person’s best interests, the healthcare professionals can refer to the Court of Protection, which is the legal body that oversees the operation of the Mental Capacity Act (2005).
Life-prolonging treatments
There are rules governing when life-prolonging treatment can be withheld or withdrawn when consent is not available.
The relatives and friends of the person receiving the treatment, along with the healthcare professionals responsible for the person’s care, should decide whether treatment should be continued. They should consider whether:
- the treatment is in the best interests of the person (in terms of quality of life and how long they will live)
- how much the treatment is improving their condition
It is important to note that there is a difference between stopping a patient's artificial supply of water and nutrients, and taking a deliberate action to make them die, for example, by injecting a lethal drug. The latter is illegal.
If activity in the brain has stopped, it is known as brain stem death. In this case, all treatments can be stopped. See the Health A-Z topic about Brain death for more information about this condition.
Court decisions
There are some circumstances where a decision should always be referred to the Court of Protection if the person cannot or will not give their consent. Situations that should always be referred to the courts include:
- sterilisation (a permanent procedure that causes sterility) for contraceptive purposes
- donation of regenerative tissue, such as bone marrow (the spongy material found in the hollow centres of some bones)
- withdrawal of nutrition and hydration from a person who is in a persistent vegetative state (when they are technically conscious but have no sense of awareness) See the Health A-Z topic about Vegetative state for more information
- where there is serious concern about the person's capacity or best interests
