An essential guide to consent - Voluntariness

Patients overtly coerced into undergoing treatment they do not want can rightly claim that their “consent” was not given freely and is therefore not valid. Cases of overt coercion are rare, but there are circumstances in which patients may feel that they have been covertly pushed into accepting treatment they would prefer not to have had. For example, in some circumstances patients may find it very difficult to say “No” to the proposed treatment, or to challenge the doctor’s assumption that they would have no objections to going ahead.

Patients overtly coerced into undergoing treatment they do not want can rightly claim that their “consent” was not given freely and is therefore not valid.

Relatives, friends and caregivers (and sometimes employers) can also exercise considerable influence in a patient’s decision-making, and this might sometimes develop into undue pressure. Patients who are detained by the police, immigration services, prison authorities or under mental health legislation may be particularly vulnerable, and under these circumstances you should try to ensure that they are aware that they can refuse treatment if they so wish.

Patients detained under the Mental Health Act may be treated for their mental disorder without their consent (depending on the section of the Act that applies), but not for physical ailments unless these arise from the mental disorder.

Advance decisions and advance statements

Adults with capacity can make known what their preferences would be regarding medical treatment if they later lose their capacity. They must have capacity at the time of making the decision.

A valid advance decision to refuse treatment made by an adult (ie, 18 or over) is legally binding in England and Wales under the terms of the Mental Capacity Act. It must specify the treatments being refused, may set out in what circumstances the refusal should apply, and may be made verbally or in writing.

If, however, the refusal relates to life-sustaining treatment, the decision must be in writing, signed and witnessed. It must also clearly state that the refusal stands even if it will place the individual’s life at risk. The situation regarding advance decisions (or directives) in Scotland and Northern Ireland is governed by common law rather than legislation.

A valid advance decision to refuse treatment made by an adult is legally binding in England and Wales under the terms of the Mental Capacity Act

Before acting on an advance decision to refuse treatment, doctors must be satisfied that it is still valid and applies to the current circumstances. See the GMC guidance, Treatment and Care Towards the End of Life: Good Practice in Decision Making (2010), for more information.

Consent by proxy

In Scotland, England and Wales, capable adults can appoint someone to make healthcare decisions on their behalf if they become incapacitated. This is explained in full in the Mental Capacity Act Code of Practice.

Best interests

When a patient lacks the capacity to consent to, or refuse, medical treatment, the doctor concerned will have to decide what is in the patient’s best interests. The Mental Capacity Act Code of Practice outlines the best interests test:

• Encourage the person to take part, or to improve their ability to take part, in making the decision.
• Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves.
• Try to find out the views of the person who lacks capacity, including:

• the person’s past and present wishes and feelings – these may have been
  expressed verbally, in writing or through behaviour or habits.
• any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question.
• any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.

Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour

• Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
• Consider whether the person is likely to regain capacity (eg, after receiving medical treatment). If so, can the decision wait until then?
• Do not be motivated in any way by a desire to bring about the person’s death. Do not make assumptions about the person’s quality of life.
• If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult:

• anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues
• anyone engaged in caring for the person
• close relatives, friends or others who take an interest in the person’s welfare
• any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person
• any deputy appointed by the Court of Protection to make decisions for the person

When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private

• For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted.
• When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone.
• See if there are other options that may be less restrictive of the person’s rights.
• Weigh up all of these factors in order to work out what is in the person’s best interests.

Research

The GMC states that seeking consent is fundamental to research involving people and that consent is only legally valid and professionally acceptable when patients have the capacity to give consent, have been properly informed, and agreed to participate in the research programme without coercion.

Guidance on ensuring this is provided in the GMC’s supplementary documents Good Practice in Research and Consent to Research (both 2010). 

Section 30 of the Mental Capacity Act also includes information about conducting medical research when the patient lacks capacity.

Consent is only legally valid when patients have the capacity to give consent, have been properly informed, and agreed to participate

Implied and express consent

Patients undergoing investigations or treatment that carry a higher risk will normally give express consent

Patients undergoing investigations or treatment that carry a higher risk will normally give express consent – either by signing a consent form or stating that they agree to go ahead with treatment.

The GMC’s guidance Consent: Patients and Doctors Making Decisions Together (2008) outlines the differences between implied and express consent, as well as advising on the correct approach

Who should take consent?

Advance decisions and advance statements

Adults with capacity can make known what their preferences would be regarding medical treatment if they later lose their capacity. They must have capacity at the time of making the decision.

A valid advance decision to refuse treatment made by an adult (ie, 18 or over) is legally binding in England and Wales under the terms of the Mental Capacity Act. It must specify the treatments being refused, may set out in what circumstances the refusal should apply, and may be made verbally or in writing.

If, however, the refusal relates to life-sustaining treatment, the decision must be in writing, signed and witnessed. It must also clearly state that the refusal stands even if it will place the individual’s life at risk. The situation regarding advance decisions (or directives) in Scotland and Northern Ireland is governed by common law rather than legislation.

"A valid advance decision to refuse treatment made by an adult is legally binding in England and Wales under the terms of the Mental Capacity Act"

Before acting on an advance decision to refuse treatment, doctors must be satisfied that it is still valid and applies to the current circumstances. See the GMC guidance, Treatment and Care Towards the End of Life: Good Practice in Decision Making (2010), for more information.

Consent by proxy

In Scotland, England and Wales, capable adults can appoint someone to make healthcare decisions on their behalf if they become incapacitated. This is explained in full in the Mental Capacity Act Code of Practice.

Best interests

When a patient lacks the capacity to consent to, or refuse, medical treatment, the doctor concerned will have to decide what is in the patient’s best interests. The Mental Capacity Act Code of Practice outlines the best interests test:

• Encourage the person to take part, or to improve their ability to take part, in making the decision.
• Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves.
• Try to find out the views of the person who lacks capacity, including:

• the person’s past and present wishes and feelings – these may have been
  expressed verbally, in writing or through behaviour or habits.
• any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question.
• any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.

"Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour"

• Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
• Consider whether the person is likely to regain capacity (eg, after receiving medical treatment). If so, can the decision wait until then?
• Do not be motivated in any way by a desire to bring about the person’s death. Do not make assumptions about the person’s quality of life.
• If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult:

• anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues
• anyone engaged in caring for the person
• close relatives, friends or others who take an interest in the person’s welfare
• any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person
• any deputy appointed by the Court of Protection to make decisions for the person

"When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private"

• For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted.
• When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone.
• See if there are other options that may be less restrictive of the person’s rights.
• Weigh up all of these factors in order to work out what is in the person’s best interests.

Research

The GMC states that seeking consent is fundamental to research involving people and that consent is only legally valid and professionally acceptable when patients have the capacity to give consent, have been properly informed, and agreed to participate in the research programme without coercion.

Guidance on ensuring this is provided in the GMC’s supplementary documents Good Practice in Research and Consent to Research (both 2010). 

Section 30 of the Mental Capacity Act also includes information about conducting medical research when the patient lacks capacity.

Consent is only legally valid when patients have the capacity to give consent, have been properly informed, and agreed to participate

Implied and express consent

When a patient lacks the capacity to consent to, or refuse, medical treatment, the doctor concerned will have to decide what is in the patient’s best interests. The Mental Capacity Act Code of Practice outlines the best interests test:

• Encourage the person to take part, or to improve their ability to take part, in making the decision.
• Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves.
• Try to find out the views of the person who lacks capacity, including:

• the person’s past and present wishes and feelings – these may have been
  expressed verbally, in writing or through behaviour or habits.
• any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question.
• any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.

"Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour"

• Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
• Consider whether the person is likely to regain capacity (eg, after receiving medical treatment). If so, can the decision wait until then?
• Do not be motivated in any way by a desire to bring about the person’s death. Do not make assumptions about the person’s quality of life.
• If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult:

• anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues
• anyone engaged in caring for the person
• close relatives, friends or others who take an interest in the person’s welfare
• any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person
• any deputy appointed by the Court of Protection to make decisions for the person

"When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private"

• For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted.
• When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone.
• See if there are other options that may be less restrictive of the person’s rights.
• Weigh up all of these factors in order to work out what is in the person’s best interests.

Who should take consent?

Withdrawing consent

[This article is part of the "An essential guide to Consent" booklet. To download the booklet as a PDF or read more click here].