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Consent

Post date: 10/12/2018 | Time to read article: 7 mins

The information within this article was correct at the time of publishing. Last updated 03/01/2019

Respect for patients’ autonomy is expressed in consent law; to impose care or treatment on people without respecting their wishes and right to self-determination is not only unethical, but illegal. For consent to be valid:

  • The patient must be competent – mental capacity is decision-specific. Assessment of a person’s capacity should be based on his/her ability to understand, retain and weigh in the balance the information relevant to a particular decision. The person must also be able to communicate the decision.
  • The patient must have sufficient information to make a choice – without adequate information, patients are unable to make decisions about their treatment. Patients should be given time to ask questions. The GMC and the courts expect patients to be given all information material to their decision, with the proviso that it would not cause the patient serious harm.
  • The patient must be able to give their consent freely – pressuring patients into consenting to treatment invalidates the consent.

Patients who lack capacity

Patients who lack capacity should not be denied necessary treatment simply because they are unable to consent to it. The principle of proxy decision making on behalf of children is well established. In England and Wales, the Mental Capacity Act 2005 has provisions allowing for the appointment of proxy decision makers for incapacitated adults. For more information see our factsheet on mental capacity. In Scotland, it is the Adults with Incapacity Act – see our factsheet.

In Northern Ireland

Patients who withhold consent

There are certain circumstances where treatment may be administered to patients who refuse to provide consent.
  • Part IV of the Mental Health (Northern Ireland) Order (1986) states that patients who are detained under the Order may receive treatment for their condition without their consent. Treatment for physical disorders unrelated to the mental condition remains subject to common law principles.
  • The Public Health Act (Northern Ireland) (1967) says that a magistrate may order for patients suffering from certain infectious diseases to be medically examined and detained in a hospital without their consent. Article 37 of the Health and Personal Social Services (Northern Ireland) Order (1972) allows healthcare professionals to make arrangements for patients who are unable to care for themselves (such as the elderly or infirm) to be moved to care homes.
However, the Order does not allow doctors to treat these patients without their consent, so treatment is dependent on common law principles.
Patients who lack capacity
Patients who lack capacity should not be denied necessary treatment simply because they are unable to consent to it. However, in Northern Ireland there is no statutory provision to allow for someone to provide consent for medical examinations, care or treatment on behalf of an adult without capacity. Some exceptions to this, where healthcare professionals may intervene and provide care to patients without capacity, are listed above.Any decision that is taken on behalf of an incompetent patient must be taken in his or her best interests. Where there is doubt about whether a patient has capacity or what action would be in their best interests, the High Court can give a ruling on the lawfulness or unlawfulness of a proposed intervention. The Official Solicitor to the Supreme Court can advise on the appropriate procedure if necessary.
 

Cases that should go to court

The Court of Protection’s Practice Direction regarding “serious medical treatment” states that some matters should be brought to the court. In paragraph 5, which relates to the applications for patients without capacity, it says:

“Cases involving any of the following decisions should be regarded as serious medical treatment for the purpose of the Rules and this practice direction, and should be brought to the court:

(a) Decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state
(b) Cases involving organ or bone marrow donation by a person who lacks capacity to consent 
(c) Cases involving non-therapeutic sterilisation of a person who lacks capacity to consent.”

Verbal or written consent?

Completed consent forms provide some evidence that consent was obtained, but mean little beyond that – it is important to realise that they do not constitute proof that the consent was valid. If there is any dispute over whether valid consent was obtained, the key issue will not be whether the patient signed a form or not, but whether they were given all the information they needed to make a considered decision. It is, therefore, crucial that the essential elements of discussions with the patient are documented in the medical record.
 

Children and young people

When caring for children, you have an overriding duty to act in the best interests of the child. When making decisions regarding treatment, the child or young person should be involved in the decision as much as possible, depending on their level of understanding.
If the child is not capable of consenting themselves, you will need the consent of a person with parental responsibility or, in some circumstances, the court, in order to proceed with treatment.

Age and capacity

Aged 18 and over
In England, Wales and Northern Ireland, once a person reaches their 18th birthday, they are assumed to be a competent adult capable of consenting or refusing treatment, unless other factors prevent them from making informed decisions.

Aged 16 and 17
A child’s affirmative consent (assent) to investigation or treatment deemed in their best interests, having achieved the age of 16, cannot be overruled by anyone with parental responsibility, although the court may in its capacity as parens patriae

Younger than 16
Children under 16 can consent to medical treatment if they understand what is being proposed. It is up to the doctor to decide whether the child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits.

A child who has such understanding is considered Gillick competent. The parents cannot overrule the child’s consent when the child is judged to be Gillick competent. For example, a 15-year-old Gillick competent boy can consent to receiving tetanus immunisation even if his parents do not agree with it.

Children under 16 who are not Gillick competent and very young children cannot either give or withhold consent. Those with parental responsibility need to make the decision on their behalf.

In an emergency situation, when a person with parental responsibility is not available to consent, the doctor has to consider what the child’s best interests are and then act appropriately. The treatment should be limited to what is reasonably required to deal with the particular emergency. Wherever possible, it is advisable to discuss the case with a senior colleague, if available. In all cases, it is important to document fully what decisions were made and why.

What happens if the child withholds consent?

If the child is not Gillick competent, the parents can consent on behalf of the child, even if the child is refusing the treatment. However, you should consider carefully whether overriding the consent of a distressed child, given the clinical circumstances at the time, is necessary. Often, if sufficient time is given, the parents will be able to encourage the child that the intervention will be beneficial. 

A competent child is legally entitled to withhold consent to treatment. However, if the treating doctor believes that the withholding of consent may be detrimental to the patient’s wellbeing, legal advice may be required. It may be necessary for a court to determine whether treatment can be given against the wishes of the competent young person.

What happens if the parents withhold consent?

If a competent child refuses treatment and his/her parents agree with the decision, but you do not believe that it is in the best interests of the child, you should take legal advice on how to proceed.

The same principle applies if the parents of a non-competent child choose to withhold consent for what you believe to be necessary treatment. You are obliged to act in the child’s best interests and these situations, whilst rare, will likely be fraught and legal advice should be sought. Working with the child and family to overcome the issues would be appropriate.

Parental responsibility
Parental responsibility includes the right to consent to medical treatment on behalf of the child and the disclosure of information held by healthcare professionals about the child. Those with parental responsibility also have a statutory right to apply for access to their children’s health records, unless the child is capable of consenting.

Who has parental responsibility?

For children whose births were registered from 15 April 2002 in Northern Ireland, from 1 December 2003 in England and Wales and from 4 May 2006 in Scotland, parental responsibility rests with both parents, provided they are named on the birth certificate, regardless of whether they are married or not. For children whose births are registered prior to these dates, the father would only automatically have parental responsibility if he was married to the mother. Otherwise, he could acquire parental responsibility through a Parental Responsibility Agreement with the mother or a Parental Responsibility Order through the courts. A married step parent or civil partner may also obtain parental responsibility in this way.

If the parents are divorced, both parents retain parental responsibility for the child. The situation is more difficult if the child was conceived by assisted reproduction. Legal parentage in these circumstances is addressed by the Human Fertilisation and Embryology Act 2008. Specific advice should be sought for individual cases.

If the child is the subject of a Care Order, the Local Authority has parental responsibility which is shared with the parents. If the child is in care voluntarily, parental responsibility remains with the parents.

There are others who can be granted parental responsibility, such as anyone granted a Residence Order (or Special Guardianship Order). The Local Authority may rely on a Protection Order (EPO or IPO) to acquire parental responsibility temporarily.

Parental responsibility is lost by those giving the child up for adoption. Once a child is put up for adoption parental responsibility is granted to the agency whilst placement is sought. When the child has been formally adopted, the adoptive parents take on parental responsibility.

Those with parental responsibility may delegate particular responsibilities to others – for example, authorising schools to give treatment for minor ailments. In an emergency, a person without parental responsibility – for example, a grandparent or childminder – may do “what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare”. This could include giving consent to urgent medical treatment.

Disagreements

Generally, consent from only one person is needed for the treatment to be lawful. This means that if the minor is competent to consent then that is sufficient; if not, then consent from one parent or other person with parental responsibility is sufficient.

If there is disagreement, you should try to reach a consensus while avoiding being drawn into disputes that are not relevant to the child’s treatment. If the investigation or treatment is minor and not essential then harmony should be sought before proceeding. 

If the matter under consideration is complex, or there are potentially serious implications for the child, a second opinion should be sought and consideration given to seeking the authority of the court. If there is dispute over controversial procedures, for example male circumcision, the doctor should not proceed without the authority of the court.
 

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