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Complications of Consent to treatment

Not wanting to know

Healthcare professionals should not withhold information out of concern that it will upset or unnerve a patient. Even if the patient specifically requests not to be told or asks for the doctor to make decisions on their behalf, it is the health care professional’s responsibility to make sure the patient knows the basic information, understands why it is important to know the options open, and is given the opportunity to change their mind at any time.

Mental health conditions

People who have conditions covered by the Mental Health Act (1983) may not be competent to give consent. However, this should not be taken for granted and needs to be assessed at the time that consent is required. The patient’s preferences should be investigated, and their agreement to treatment should be gained, whenever they are able to make a rational decision. These wishes should be respected if, later on, the patient is not able to give proper consent.

If the patient lacks capacity and has not expressed any wishes previously, their mental health condition may be treated without consent, as may any related conditions (e.g. those resulting from self-harm). Unrelated conditions cannot be treated without consent.

Self-harm

In cases of self-harm or attempted suicide, where the person was competent when they made the decision to harm themselves and refuses treatment, it may be necessary to see if they can be treated without consent under the Mental Health Act. This can happen if a person has a serious mental disorder requiring hospital treatment. The person’s nearest relative or an approved social worker must make an application for the person to be forcibly kept in hospital and treated, and two different doctors must assess the person’s condition. 

If a person is kept in hospital under the Mental Health Act, it does not automatically mean that they are no longer able to agree to treatment. However, they will need to be reassessed to find out if they are capable of making an informed decision.

If a person has tried to harm himself or herself, but does not have a mental disorder covered by the Mental Health Act, then unwanted treatment cannot be forced upon them, although efforts to offer treatment must be made.

Fluctuating capacity

Capacity can vary. It can be influenced by factors such as anaesthetics, shock, fatigue, or pain. Temporary inability to make decisions does not allow others to make decisions on a person’s behalf. Also, if a person is under anaesthetic or in shock, or affected by any of these factors, it does not automatically mean they are not able to agree to treatment.

Intervening when the patient lacks capacity

If an adult lacks capacity, any physical interventions must be in the ‘best interests’ of the patient. Firstly, it must be determined whether the person has previously expressed any opinions regarding certain procedures, perhaps on the grounds of religious or moral beliefs.  This wish must be respected. It is only when the patient may die if an intervention is not made, that this can be carried out without consent. However, if the patient had already expressed a clear opinion on this matter, the doctor cannot override this, whatever the consequences. If it is safe to wait until the patient can provide their permission, then this must be done. In such circumstances, doctors are advised to refer to a senior colleague for advice. Any doubts can be referred to the High Court for a decision.

It is therefore important for healthcare professionals to explain procedures, consequences and possible complications to the patient. It is good practice for the doctor or nurse who will be involved to talk directly with the patient. As well as helping the patient to make an informed decision, it helps the doctors and nurses to work out what the patient would prefer to happen, if a complication happens during treatment. Patients should be given the chance to change their mind, particularly if some time has passed since the original decisions were made.

Emergency treatment

In circumstances where an intervention has been made in an emergency to save life, without consent, the situation has to be explained to the patient as soon as they are able to understand.

The Public Health (Control of Disease) Act 1984 provides that, on an order made by a magistrate, persons suffering from certain infectious diseases, such as cholera or typhus, can be medically examined and admitted to a hospital without their consent.

Life-prolonging treatments

There are particular rules governing when life-prolonging treatment can be withheld or withdrawn, when consent is not available.

The relatives and friends of the patient, as well as the medical staff, should help to decide whether treatment should be continued. They should consider whether the treatment is in the best interests of the patient (in terms of quality of life as well as how long they will live) and how much the treatment is improving their condition.

It is important to note that there is a difference between stopping a patient’s artificial supply of water and nutrients, and taking a deliberate action to make them die (for example, injecting a lethal drug). The latter is illegal.

If activity in the brain has stopped, this is called brain stem death. In this case, all treatments can be stopped.

Court decisions

There are some circumstances in which decision should always be referred to court, if the person cannot or will not give their permission:

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 serious concern about the patient’s capacity or best interests.
 

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