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How does it work? of Consent to treatment

Adults

Providing that a person is competent and that they are acting voluntarily, the decisions of adults about physical intervention cannot be overridden or ignored.

Competence in this sense has a special definition. An adult must be aware of the nature of their condition, and must understand the intervention that is being suggested. This means knowing how it will take place, and any possible consequences, including the consequences of not taking action. They should not be under pressure, from family, partner or friends, nor from the medical practitioner, or anyone in authority over them such as a prison officer. Nurses and doctors can suggest treatment, but should answer the patient’s questions and provide a balanced, full picture of the options and their consequences.

Capacity should not be confused with whether the doctor thinks the patient has made a reasonable decision. A person is entitled to make a decision based on their own personal values or religious beliefs, even if it does not appear rational to others. It is only when the decision defies all moral standards, or is based on a misunderstanding of reality (such as an anorexic who cannot see their failing physical health), that a person may lack capacity to make the decision.

When an appropriately informed adult makes a voluntary decision to refuse treatment, it cannot be overruled, even if it may result in their death. It should be noted that a competent pregnant woman cannot be overruled on decisions that may adversely affect her unborn child.

Children

Consent for a child is less straightforward. If a child has the intelligence and ability to understand fully what is involved in a proposed intervention, then they are considered able to give their permission. This is known as ‘Gillick competence’. Children have different levels of understanding, and their competence may depend on the type of intervention in question. For example, they might be able to make a decision about whether to allow their GP to examine their throat, but not to decide whether to undergo cancer treatment.

No one except the courts can override the consent of a competent child. However, a person with parental responsibility for a child can override that child if they decline treatment. Parental responsibility belongs to: the mother; the father if he is married to the mother at the time of birth or conception or has since married her; a legally appointed guardian; or anyone else with legal responsibility for the child (e.g. as part of a care order).(1)

Such decisions are made based on the ‘best interests’ of a child. This means quality of life in all respects: not just length of life but the ability to enjoy it. When an overruling has long term impact for the individual concerned, for example if a pregnant girl declines an abortion but the parent wishes them to go ahead, then the case should be referred to the courts for a ruling.

If a child is unable to give their permission then anyone with parental responsibility can do so on their behalf, but they must follow the principle of ‘best interests’. If there is any disagreement the decision should be referred to the courts.

Young people aged 16 or 17 have their capacity assessed by the same criteria as adults, and if they are able to give their consent, then there is no need to refer to anyone with parental responsibility. However, their refusals can be overridden in the same manner as all other under-18s.

Living Wills or Advance Directive

People sometimes set out their opinions and wishes for their treatment in advance, should they lose the capacity to decide. These may be called living wills. Providing they were competent at the time their wishes were made, and that they are still relevant, these requests should be carried out. Even if it is not directly relevant, the principles expressed should provide some guidance as to the patient’s wishes.

If there is any doubt as to the relevance of an advance directive, the decision may be referred to the court. As well as during temporary periods of incapacity (such as unconsciousness due to anaesthetics), these advance directives may be applied in cases of permanent incapacity, such as coma or advanced dementia.

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