Every adult must be presumed to have the mental capacity to consent or refuse treatment, unless they are:
- unable to take in or retain information provided about their treatment or care
- unable to understand the information provided
- unable to weigh up the information as part of the decision-making process
The assessment as to whether an adult lacks the capacity to consent or not is primarily down to the clinician providing the treatment or care, but nurses and midwives have a responsibility to participate in discussions about this assessment. Nurses and midwives should be familiar with consent guidance from other regulators specifically the guidance from the General Medical Council (2008) and the General Pharmaceutical Council (2012).
Nurses and midwives have three over-riding professional responsibilities with regard to obtaining consent:
- To make the care of people their first concern and ensure they gain consent before they begin any treatment or care.
- Ensure that the process of establishing consent is rigorous, transparent and demonstrates a clear level of professional accountability.
- Accurately record all discussions and decisions relating to obtaining consent
Valid consent must be given by a competent person (who may be a person lawfully appointed on behalf of the person) and must be given voluntarily. Another person cannot give consent for an adult who has the capacity to consent. Exceptions to this are detailed below.
An adult who becomes temporarily unable to consent due to, for example, being unconscious, may receive treatment necessary to preserve life. In such cases the law allows treatment to be provided without the person in the care of a nurse or midwife consent, as long as it is in the best interests of that person.
Medical intervention considered being in the persons best interest, but which can be delayed until they can consent, should be carried out when consent can be given. Exceptions to this are where the person has issued an advanced directive detailing refusal of treatment.
Obtaining consent is a process rather than a one-off event. When a person is told about proposed treatment and care, it is important that the information is given in a sensitive and understandable way. The person should be given enough time to consider the information and the opportunity to ask questions if they wish to. Nurses and midwives should not assume that the person in their care has sufficient knowledge, even about basic treatment, for them to make a choice.
The Code supports involving people in the care giving processes. It clearly states:
“You must uphold people’s rights to be fully involved in decisions about their care.”
It is essential that they are given sufficient information to enable them to determine whether or not to accept or decline treatment and care. This right is supported in the Code where it states:
“You must respect and support people’s rights to accept or decline treatment and care.”
If a person feels the information they have received is insufficient, they could make a complaint to the NMC or take legal action. Most legal action is in the form of an allegation of negligence. It is therefore essential that nurses and midwives ensure that they:
“…share with people, in a way they can understand, the information they want or need to know about their health.”
In exceptional cases, for example, where consent was obtained by deception or where not enough information was given, this could result in an allegation of battery (or civil assault in Scotland). However, only in the most extreme cases is criminal law likely to be involved.
Who should obtain consent?
The nurse or midwife proposing to perform a procedure should obtain consent, although there may be some situations where this may be delegated to another.
When choosing to delegate the nurse or midwife must:
"… establish that anyone you delegate to is able to carry out your instructions.”
“… confirm that the outcome of any delegated task meets required standards.”
Usually the individual performing a procedure should be the person to obtain consent. In certain circumstances, you may seek consent on behalf of colleagues if you have been specially trained for that specific area of practice.
There may be occasions where nurses or midwives, although caring for the person, are not responsible for either obtaining consent or performing the procedure. In these cases the nurse or midwife is often best placed to know and to judge what information the person requires in order to make a decision.
Nurses and midwives are reminded of the importance of communication within the team and any concerns regarding a persons understanding of a procedure should be communicated appropriately. Such difficulties in understanding could be as a result of language differences. Interpreters may be required to assist in such cases. The Code on these two points specifically states:
“You must keep your colleagues informed when you are sharing the care of others.”
“You must make arrangements to meet peoples language and communication needs.”
Forms of consent
A person in the care of a nurse or midwife may demonstrate their consent in a number of ways. If they agree to treatment and care, they may do so verbally, in writing or by implying (by co-operating) that they agree. Equally they may withdraw or refuse consent in the same way. Verbal consent, or consent by implication, will be enough evidence in most cases. Written consent should be obtained if the treatment or care is risky, lengthy or complex. This written consent stands as a record that discussions have taken place and of the person’s choice. If a person refuses treatment, making a written record of this is just as important. A record of the discussions and decisions should be made.
When consent is refused
Legally, a competent adult can either give or refuse consent to treatment, even if that refusal may result in harm or death to him or herself. Nurses and midwives must respect their refusal just as much as they would their consent. It is important that the person is fully informed and, when necessary, other members of the health care team are involved. A record of refusal to consent, as with consent itself, must be made.
The law and professional bodies recognise the power of advanced directives or living wills. These are documents made in advance of a particular condition arising and show the persons treatment choices, including the decision not to accept further treatment in certain circumstances.
Although not necessarily legally binding, they can provide very useful information about the wishes of a person who is now unable to make a decision.
Consent of people under 16
If the person is under the age of 16 (a minor), nurses and midwives must be aware of local protocols and legislation that affect their care or treatment. Consent of people under 16 is very complex, so local, legal or professional organisation advice may need to be sought.
Children under the age of 16 are generally considered to lack the capacity to consent or to refuse treatment. The right to do so remains with the parents, or those with parental responsibility, unless the child is considered to have significant understanding and intelligence to make up his or her own mind about it.
Children of 16 or 17 are presumed to be able to consent for themselves, although it is considered good practice to involve the parents. Parents or those with parental responsibility may override the refusal of a child of any age up to 18 years. In exceptional circumstances, it may be necessary to seek an order from the court.
Child minders, teachers and other adults caring for the child cannot normally give consent.
More information and specific leaflets for children and young people, and their parents can be found on the Department of Health website.
The Age of Legal Capacity (Scotland) Act 1991 sets out the current position on the legal capacity of children, including giving or withholding consent to treatment. The law is broadly similar to that in England and Wales. However, one important difference is that parents consent cannot override a refusal of consent by a competent child. In Scotland a child under the age of 16 has the legal capacity to consent to his or her own treatment where, according to the Act…"in the opinion of the qualified medical practitioner attending to him/her, he/she is capable of understanding the nature and possible consequences of the procedure or treatment."
Consent of people who are mentally incapacitated
When a person is considered incapable of providing consent, or where the wishes of a mentally incapacitated person appear to be contrary to the interests of that person, nurses and midwives caring for that particular person should be involved in assessing their care or treatment. It is important that nurses and midwives are “aware of the legislation regarding mental capacity, ensuring that people who lack capacity remain at the centre of decision making and are fully safeguarded” (The Code, 2008)
The courts have identified certain circumstances when referral should be made to them for a ruling on lawfulness before a procedure is undertaken. These are
- sterilisation for contraceptive purposes
- donation of regenerative tissue such as bone marrow
- withdrawal of nutrition and hydration from a patient in a persistent vegetative state
- where there is doubt as to the persons capacity or best interests
The Adults with Incapacity (Scotland) Act 2000 and The Mental Capacity Act 2005, (England and Wales) allow people over the age of 16 to appoint a proxy decision-maker. This person has the legal power to give consent to medical treatment when the patient loses the capacity to consent. The Act also requires medical practitioners to take in to account, so far as is reasonable and practicable the views of the patient's nearest relative and their carer.
Mental Health Acts
For people detained under the relevant mental health legislation, the principles of consent continue to apply for conditions not related to the mental disorder. Nurses and midwives who are involved in the care or treatment of people detained under the relevant mental health legislation, must ensure that they are aware of the circumstances and safeguards needed for providing treatment and care without consent. This information can be obtained from the relevant government health departments of the four countries of the United Kingdom.
Mental Capacity Act 2005
This legislation aims to empower people who lack ‘capacity’ to remain at the centre of the decision-making process and to safeguard them and the professionals who work with them. It makes it clear who can take decisions, in which situations, and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity. Aiming to ensure that people who lack ‘capacity’ are not abused, and the act introduces as new criminal offence of neglect that can be the subject of a charge against anyone who has mistreated or wilfully neglected a person who lacks ‘capacity’.
The Mental Capacity Act 2005 [PDF] became fully effective in April 2007. The Act applies to England and Wales and provides a statutory framework to empower and protect vulnerable people who are unable to make their own decisions. It applies to those aged 16 and over with potentially 1.2 million people directly affected and will include those with dementia, learning disability, brain injury, mental health problems and autism.
Scotland has similar legislation in place with The Adults with Incapacity (Scotland) Act 2000.
In Northern Ireland capacity is covered in the The Mental Health (Northern Ireland) Order 1986 however, a new mental capacity act is expected to be passed in 2013.
The five key principles of the Act
The Act is underpinned by a set of five key principles:
1. A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
2. The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions
3. That individuals must retain the right to make what might be seen as eccentric or unwise decisions
4. Best interests – anything done for or on behalf of people without capacity must be in their best interests
5. Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms
Mental Capacity Act Code of Practice
Whilst the Act sets out the legal framework, the Code of Practice (the Code) provides guidance and information for those acting under its terms and applying its provisions on a daily basis. As there are many situations that can arise when caring or working with those who may lack capacity, the Code incorporates good practice along with the flexibility to apply the principles to the particular circumstances of the situation.
To view the Mental Capacity Act Code of Practice, visit the Department of Constitutional Affairs website.
This information was updated May 2012.
Consent and the removal, storage and use of material (including medical post-mortem examinations)
The Human Tissue Act 2004 covers England, Wales and Northern Ireland (there is separate legislation in Scotland - The Human Tissue (Scotland) Act 2006) and regulates, under the control of the Human Tissue Authority, activity concerning the removal, storage, use and disposal of human tissue. The fundamental principle underpinning these activities is consent. In broad terms, under the Act and underpinning codes of practice, consent is required to store and use dead bodies; remove, store and use relevant material from a dead body; and to store and use relevant material from the living. Consent will also be required for a medical (as opposed to a coronial) post-mortem examination.
Further information is contained in the following codes of conduct:
This information is for sign posting purposes to assist the nurse or midwife working within the multidisciplinary team and should be read in conjunction with the information provided specifically for nurses and midwives.
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