When do health professionals need consent from patients?

1. Before you examine, treat or care for competent adult patients you must obtain their consent.
2. Adults (>18 years) are always assumed to be competent unless demonstrated otherwise. If you have doubts
about their competence, the question to ask is: “can this patient understand and weigh up the
information needed to make this decision?” Unexpected decisions do not prove the patient is
incompetent, but may indicate a need for further information or explanation.
3. Patients may be competent to make some health care decisions, even if they are not competent
to make others.
4. Giving and obtaining consent is usually a process, not a one-off event. Patients can change their
minds and withdraw consent at any time. If there is any doubt, you should always check that
the patient still consents to your caring for or treating them.

Can children consent for themselves?

5. Before examining, treating or caring for a child, you must also seek consent. Young people aged
16 and 17 are presumed to have the competence to give consent for themselves. Younger
children who understand fully what is involved in the proposed procedure can also give consent
(although their parents will ideally be involved). In other cases, some-one with parental
responsibility must give consent on the child’s behalf, unless they cannot be reached in an
emergency. If a competent child consents to treatment, a parent cannot over-ride that consent.
Legally, a parent can consent if a competent child refuses, but it is likely that taking such a
serious step will be rare.

Who is the right person to seek consent?

6. It is always best for the person actually treating the patient to seek the patient’s consent.
However, you may seek consent on behalf of colleagues if you are capable of performing the
procedure in question, or if you have been specially trained to seek consent for that procedure.
What information should be provided?
7. Patients need sufficient information before they can decide whether to give their consent: for
example information about the benefits and risks of the proposed treatment, and alternative
treatments. If the patient is not offered as much information as they reasonably need to make
their decision, and in a form they can understand, their consent may not be valid.

Is the patient’s consent voluntary?

8. Consent must be given voluntarily: not under any form of duress or undue influence from
health professionals, family or friends.

Does it matter how the patient gives consent?

9. No: consent can be written, oral or non-verbal. A signature on a consent form does not itself
prove the consent is valid – the point of the form is to record the patient’s decision, and also
increasingly the discussions that have taken place. Your Trust or organisation may have a policy
setting out when you need to obtain written consent.

Refusals of treatment

10. Competent adult patients are entitled to refuse treatment, even where it would clearly benefit
their health. The only exception to this rule is where the treatment is for a mental disorder and
the patient is detained under the Mental Health Act 1983. A competent pregnant woman may
refuse any treatment, even if this would be detrimental to the fetus.

Adults who are not competent to give consent

11. No-one can give consent on behalf of an incompetent adult. However, you may still treat such
a patient if the treatment would be in their best interests. ‘Best interests’ go wider than best
medical interests, to include factors such as the wishes and beliefs of the patient when
competent, their current wishes, their general well-being and their spiritual and religious
welfare. People close to the patient may be able to give you information on some of these
factors. Where the patient has never been competent, relatives, carers and friends may be best
placed to advise on the patient’s needs and preferences.
12. If an incompetent patient has clearly indicated in the past, while competent, that they would
refuse treatment in certain circumstances (an ‘advance refusal’), and those circumstances arise,
you must abide by that refusal.

Disclaimer

The text from this tiddler is taken directly from Government (Dept of Health) publication, but refers to England - most of the principles will be useful outside of England, but practitioners remain responsible for ensuring that their own practice is within the law of the land wherever they are practicing.

This summary cannot cover all situations. For more detail on UK law, consult the Reference guide to consent for examination or treatment, available from the NHS Response Line 08701 555 455 and at www.doh.gov.uk/consent