Consent to treatment is the principle that a person must give permission before they receive any type of medical treatment, test or examination and is generally requested on the basis that an explanation of the required treatment, test or procedure has been received from a Clinician.
Consent from a patient is needed regardless of the procedure, whether it’s a physical examination, organ donation or something else.
The principle of consent is an important part of medical ethics and international human rights laws.
For consent to be valid it must be voluntary and informed, and the person consenting must have the capacity to make the decision.
These terms are explained below:
- voluntary– the decision to either consent or not to consent to treatment must be made by the person themselves, and must not be influenced by pressure from medical staff, friends or family
- informed– the person must be given all of the information in terms of what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments, and what will happen if treatment doesn’t go ahead
- capacity– the person must be capable of giving consent, which means they understand the information given to them and they can use it to make an informed decision
If an adult has the capacity to make a voluntary and informed decision to consent to or refuse a particular treatment, their decision must be respected. This is still the case even if refusing treatment would result in their death, or the death of their unborn child.
If a person doesn’t have the capacity to make a decision about their treatment, the Healthcare Professionals treating them can go ahead and give treatment if they believe it’s in the person’s best interests.
Clinicians must however take reasonable steps to seek advice from the patient’s friends or relatives before making these decisions.
How consent is given
Consent can be given:
verbally– for example, by saying you are happy to have an X-ray
in writing– for example, by signing a Consent Form for surgery to be performed
Someone could also give non-verbal consent, as long as they understand the treatment or examination about to take place – for example, holding out an arm for a blood test.
Consent should be given to the Healthcare Professional directly responsible for the person’s current treatment, such as:
- a Nurse arranging a blood test
- a GP prescribing new medication
- a Surgeon planning an operation
If someone is going to have a major medical procedure such as an operation, their consent should ideally be secured plenty of time in advance, so that they have time to obtain information about the procedure and ask questions.
If a patient changes their mind at any point before the procedure, they are entitled to withdraw their previous consent.
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.
Consent from children and young people
When treating patients under 18, consent must be obtained from:
- Someone with parental responsibility for them
- A person aged 16 or 17 if they are deemed capable of making informed decisions, or
- Someone under 18 if they are deemed Gillick competent. That is, they have the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits. While there is no statute in Northern Ireland setting out the general principles of consent, common law dictates that touching a patient without valid consent may constitute the civil or criminal offence of battery.
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.
When consent isn’t needed
There are a few exceptions when treatment may be able to go ahead without the person’s consent, even if they’re capable of giving their permission.
It may not be necessary to obtain consent if a person:
- requires emergency treatment to save their life, but they’re incapacitated (for example, they’re unconscious) – the reasons why treatment was necessary should be fully explained once they’ve recovered
- immediately requires an additional emergency procedure during an operation – there has to be a clear medical reason why it would be unsafe to wait to obtain consent, and it can’t be simply for convenience
- with a severe mental health condition such as schizophrenia, bipolar disorder or dementia, lacks the capacity to consent to the treatment of their mental health (under the Mental Health Act 1983) – in these cases, treatment for unrelated physical conditions still requires consent, which the patient may be able to provide despite their mental illness
- requires Hospital treatment for a severe mental health condition, but self-harmed or attempted suicide while competent and is refusing treatment (under the Mental Health Act 1983) – the person’s nearest relative or an approved Social Worker must make an application for the person to be forcibly kept in Hospital, and two Doctors must assess the person’s condition
- is a risk to public health as a result of rabies, cholera or tuberculosis (TB)
- is 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
Consent and life-sustaining treatments
A person may be being kept alive with supportive treatments – such as lung ventilation – without having made an advance decision based on information which outlined the care that they may have they refused to receive.
In these cases, a decision about continuing or stopping treatment needs to be made based on what that person’s best interests are believed to be.
To help reach a decision, the Healthcare Professionals responsible for the person’s care should discuss the issue with the relatives and friends of the person receiving the treatment.
They should consider, among other things:
- what the person’s quality of life will be if treatment is continued
- how long the person may live if treatment is continued
- whether there’s any chance of the person recovering
Treatment can be withdrawn if there’s an agreement that continuing treatment isn’t in the person’s best interests.
The case will be referred to the Courts before further action is taken if:
- an agreement can’t be reached
- a decision has to be made on whether to withdraw treatment from someone who has been in a state of impaired consciousness for a long time (usually at least 12 months)
It is important to note the difference between withdrawing a person’s life support and taking a deliberate action to make them die. For example, injecting a lethal drug would illegal.
If you believe you’ve received treatment you didn’t consent to, you can make an official complaint by writing to your Practice Manager, who will assist you with this process.