Consent to treatment - when consent is not needed 

When consent is not needed 

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

These circumstances are outlined below.

Additional procedures

There may be some circumstances when, during an operation, it becomes obvious that the patient would benefit from an additional procedure that was not included in their original consent.

For example, they may be having abdominal surgery when the surgeon notices that their 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 the person up to get their consent, the additional procedure can go ahead if it is considered to be in the patient's best interest.

However, extra procedures cannot be done just because it would be convenient for the healthcare professionals. There has to be a clear medical reason why it would be unsafe to wait to obtain the patient's consent.

Emergency treatment

If a person requires emergency treatment to save their life, and they are unable to give consent as a result of being physically or mentally incapacitated (for example, they are unconscious), treatment will be carried out. Once they have recovered, the reasons why treatment was necessary will be fully explained.

 

Mental health condition

 

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.

If the patient made an advance decision, this can potentially be overruled providing it is regarding treatment for a mental health condition and they are being held under the 1983 Act.

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.

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).

Risk to public health

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 or tuberculosis (TB).

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.


Page last reviewed: 11/06/2012

Next review due: 11/06/2014

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The 1 comments posted are personal views. Any information they give has not been checked and may not be accurate.

User740855 said on 17 January 2013

I would like to point out the lack of justification afforded by the above principles to circumcision of male infants. Circumcision is done without the patient's consent. In the absence of overwhelming justification, such as a life threatening emergency, surgeries must not be performed on patients who cannot provide informed consent.

In the UK, everyone has the same legal rights, regardless of their age, sex, or religion, etc. If babies have the exact same legal rights as adults, then they must be treated with the same respect for their autonomy as we would treat adults. Therefore, in a medical setting, they should be treated not as objects, but more like adults who are temporarily incompetent or unconscious.

If we were to do so, and then apply to them the standards we use for incompetent adults, routine infant circumcision would be clearly seen as unethical. It would consequently also be illegal.

A parent may not elect totally unnecessary surgeries for their child. Parental consent alone cannot justify an unnecessary surgery which violates the patient's autonomy; there must be an overwhelming justification provided. The "consent by proxy" of a parent, for their infant child, is no more authoritative than consent by a parent for surgery on their adult children. No one would accept the idea of performing a circumcision on an incapacitated, grown man simply because his parents requested it. There must always be an overwhelming justification whenever performing surgery on a patient without their consent. In the absence of a proper justification for abrogating patient consent, medical intervention becomes unethical.

The human rights and legal protections that adults enjoy apply equally to children. Physicians have an obligation to protect the rights of children under their care. Routine infant circumcision violates those rights.

I suggest reading a thorough legal analysis of the issue here: http://www.ncbi.nlm.nih.gov/pubmed/11216345

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Complaints

If you believe that you have received treatment that you did not consent to, you can make an official complaint. See About NHS complaints for more information about the complaints procedure.