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Consent in Northern Ireland

Introduction

Nurse and patient This guidance will cover the law on consent to care and treatment, including the care and treatment of those who are not capable of giving a valid consent.

The broad principles of the law of consent are the same in all parts of the United Kingdom, but there are legislative differences between countries. This guide will cover the law of consent for Northern Ireland.

This is intended to be a practical guide for nursing staff, including registered nurses and nursing support staff. The focus will be on day-to-day decisions.

There are related topics on consent not specifically covered in this resource which require separate and specialist guidance.

Basic principles of consent

Nurse talking to patient The boxes below contain information on the basic principles of consent for adults and children. These boxes are expanded upon in the later sections.

  • An adult who is capable of making a decision must freely give consent before any medical treatment or care is given.
  • Consent is only valid if the patient has sufficient information about the benefits and risks of treatment to make an informed choice.
  • Consent may be communicated verbally or in writing, or may be inferred from the patient’s actions.
  • Consent may be withdrawn at any time before the treatment has been given.
  • The person providing care or treatment must ensure that consent has been given. E.g. a nurse must ensure that consent has been given before administering medication; a healthcare assistant must ensure that consent has been given before washing a patient or taking blood.
  • If the adult is not capable of making a decision, then the treatment may be given without consent, if it is the best interests of the patient.

  • Adults with parental responsibility may give consent on behalf of their children.
  • Children with capacity aged 16 or 17 may consent to their own treatment, whether or not their parents’ consent.
  • A child under the age of 16 who is capable of understanding the nature and possible consequences of the treatment may give a valid consent. (This is known as ‘Gillick competence’.)
  • If the treatment is urgently necessary in the best interests of the child, it may lawfully be given, even if the parents do not consent.
  • Where there are serious concerns for the welfare of a child, the courts may intervene. An order of the court may override a child or parent’s refusal of medical treatment, or consent to medical treatment.

Consent and adults

Nurse talking to family As outlined in the basic principles section, consent in adults relies on individuals who are capable, i.e. have the capacity to make a decision freely and have sufficient information about the benefits and risks of treatment to make an informed choice (see sections on capacity to consent and specific treatment).

Consent may be communicated verbally or in writing, or may be inferred from the patient’s actions as further described in the section on consent type.

Express and implied consent

Consent may be written or verbal. Alternatively, consent may be inferred from the patient’s actions. This is known as ‘implied consent’ and happens every day. It would be hard to provide an efficient and caring health service if explicit consent was sought for every treatment. Everyday examples of implied consent are given below:

  • A nurse on a drugs-round offers the patient her usual prescribed medication, which the patient recognises and takes without further discussion. The patient has given a valid implied consent to take the medication.
  • A nurse-prescriber prescribes antibiotics for a patient with an infection, explaining the effects and more common side-effects. The patient takes the prescription to the pharmacy, where it is dispensed, they then take the medicine as prescribed. The patient has given an implied consent to take the prescribed antibiotic. There is no need for the prescriber to ask, explicitly, ‘Do you consent to take this medication?’
  • A carer arrives at a patient’s home, to assist the patient with washing. While chatting with the carer about the fortunes of the local football team, the patient allows himself to be washed. The patient has given implied consent for assistance with personal hygiene.
  • A patient receives an invitation for a routine X-ray through the post, attends for the X-ray at the appointed time. The patient has given an implied consent for the X-ray.
  • The nurse is taking routine observations. When she picks up the blood pressure cuff, the patient holds out her arm as usual. The patient has given consent to having her blood pressure taken.

In any of these cases, if the patient asks questions, or expresses concerns or reservations, these should be discussed fully with the patient. Nursing staff should be satisfied that the patient has consented before providing the care or treatment.

Nurses need to be mindful that they may be seen as being in a position of authority; patients sometimes do what they ask, even if this is against their wishes. If there is any doubt whether implied consent is genuine, the nurse should pause to discuss this further with the patient.

 

Informed consent

Before giving consent, the patient should be made aware of the benefits and ‘material risks’ of the treatment, and of the consequences of not receiving the treatment.

A risk is ‘material’ if a reasonable person in the patient’s position would be likely to attach significance to the risk, or if the nurse should reasonably be aware that this particular patient will attach significance to the risk.

Everyday examples of material risk are given below:

  • Alison is attending hospital for a hernia repair. The operation carries very little risk. However, with any operation, there is an extremely low risk that the surgeon or anaesthetist might make a serious error, with devastating consequences. Does this risk need to be discussed with Alison? The nurse may reasonably conclude that such a low risk is not ‘material’, and need not be discussed unless Alison directly asks about it.
  • Jeremy is also attending for low-risk surgery. He is severely disabled as a result of a medical error when he was a child. The nurse may reasonably conclude that he would attach particular significance to the risk of medical error, and discuss the extent of this risk with him.
  • Paul is a 17-year-old boy with haemophilia, attending for a hepatitis B vaccine. The risks of a haematoma at the injection site are very low in the general population, but significant in haemophiliacs. Therefore, this risk should be discussed with Paul.
  • Jane, age 21, is a model, seeking a contraceptive implant. This might result in a scar. While the scar is usually tiny and unobtrusive, Jane is likely to consider it significant. This risk should be discussed with Jane in detail.

 

Consent forms

It is customary to ask the patient to sign a consent form for surgery and other serious invasive procedures. Written consent is not usually required by law, but is considered good practice. It serves as a record of the information given to the patient, and of the patient’s consent.

Modern consent forms usually include details of the risks and benefits of the procedure. The person obtaining consent should not assume that the patient has read these, but should talk them through with the patient before the patient signs the form.

The patient’s consent is only valid if the patient is capable of making a rational decision. This is known as ‘capacity’.

A person lacks capacity if they are unable to make a decision for themselves because of an impairment or disturbance in the functioning of the mind or brain. Individuals are considered to be “unable to make a decision” for themselves if they are;

  1. not able to understand the information relevant to the decision;
  2. not able to retain that information for the time required to make the decision;
  3. not able to appreciate the relevance of that information and to use and weigh that information as part of the process of making the decision;
  4. not able to communicate his or her decision (whether by talking, using sign language or any other means). 

The ‘information relevant to the decision’ is any information that would normally be given in the course of obtaining ‘informed consent’ and includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision. See informed consent section.

 

Unwise decisions

If the patient has capacity, the patient’s decisions must be respected, even though these decisions appear unwise. The following case study is based on a case that came to court in 1994.

Case study: refusing life-saving treatment

During a 7-year prison term for stabbing his girlfriend, C was diagnosed with paranoid schizophrenia and moved to Broadmoor. He had delusions of being a world-famous doctor and also delusions of persecution. While at Broadmoor, he developed gangrene in his foot and referred to a surgeon. The surgeon’s view was that, unless his leg was amputated below the knee, he would die.

C refused to consent to amputation. He said that he would rather die with 2 legs than live with one. After hearing C give evidence, the court ruled that, despite his grandiose delusions, C had capably weighed up the pros and cons of the operation and made a genuine personal choice. In view of his lack of consent, it would be unlawful to carry out the operation.

 

The presumption of capacity

Patients are presumed to have capacity unless and until it is established that they lack it. For example, nurses should not assume that a patient with Down’s syndrome or with dementia lacks capacity to make a particular decision, but should carry out an assessment and make a record of this assessment.

 

Capacity is decision-specific

Capacity is decision-specific. A patient may have capacity to make one decision but lack capacity to make another decision. See the case study below.

Case study: patient with dementia, refusal of medication

Sylvia, age 84, is living with dementia. She takes a senna tablet every morning for long-standing constipation. On Monday, she develops a chest infection. The doctor prescribes her an antibiotic. On Tuesday morning, she is willing to take the antibiotic without any argument, believing this to be a ‘tonic’. However, she picks out the Senna tablet and says, ‘Not that one. I went 5 times yesterday.’

Sylvia lacks capacity to make a decision about the antibiotic, since she does not understand its nature and purpose. On the other hand, she clearly understands the nature and purpose of the Senna tablet, and has made an informed choice about whether to take it or not. Therefore, she has capacity to make a decision about the Senna tablet. Her refusal must be respected.

 

Assessment of capacity - Hard cases

In some cases, it is very hard to decide whether a patient has the capacity to make a decision or not. An example is given in the case study, below:

Case study: personality disorder, refusal of personal care

Archie has a diagnosis of anti-social personality disorder. He has a long history of anti-social behaviour, and a criminal record, including violent and sexual offences. He is of above-average intelligence and has no signs of mental illness. Following a right-sided stroke, he becomes immobile and incontinent.

He is admitted to a care home where he refuses most of the personal care offered. He will remain in a soiled pad for a week or more before permitting the carers to change it. He develops skin problems but will not allow a doctor to examine him. He is articulate about his rights when he refuses care, and appears to understand the issues well.

Archie appears to have capacity to make a decision about his personal care. However, his presentation is complex, and his physical health is suffering. In these circumstances, nurses might seek a psychiatric assessment to help assess Archie’s capacity.

If the conclusion is that Archie has capacity, nursing staff must respect his decision to refuse personal care. However, his behaviour is likely to cause serious problems to staff and other residents. He needs to understand the implications for himself and others if he continues to refuse care. Senior nursing staff should discuss this with him, and consult with his family, if possible, and with multi-disciplinary team, including mental health professionals and a social worker.

They need to consider a safeguarding referral for ‘self-neglect’ and might try to agree a ‘contract’ with Archie, setting out the terms on which he will accept care. If the contract is broken, the home has the right to evict him, though this will always be the last resort.

 

Providing care or treatment to a patient who lacks capacity

If a patient lacks capacity, healthcare staff may lawfully provide care and treatment without consent, if they assess this to be in the best interests of the patient. The following principles are important when assessing the patient’s best interests:

  • Blanket decisions should not be made on the basis of the patient’s diagnosis. The patient’s individual circumstances should always be taken into account.
  • A patient who is unable to make a fully informed choice should still be encouraged to participate as fully as possible in his or her care.
  • Some patients have ‘fluctuating capacity’. Discussion should take place at the time when the patient is best able to understand the proposed treatment.
  • If the patient is likely to recover capacity in the future, then the decision should be postponed, if this is reasonably practicable.
  • Where possible, care should be given in a way that is least restrictive of the patient’s liberty.
  • Staff should take account of the patient’s previously-expressed wishes, if they are known.
  • It is good practice to consult the patient’s relatives and friends when making decisions about the patient’s best interests.

After consulting with others, as above, it is usually for clinicians (not e.g. relatives) to make decisions about the patient’s care. The exception is if a relative has been granted power of attorney for health and welfare or has been appointed as the patient’s deputy.

Case study: care of an unconscious patient

Yusuf is admitted to hospital unconscious. Following a scan, the medical team diagnose a brain haemorrhage, requiring urgent surgery. Following an assessment, the nursing team conclude that he is at risk of pressure sores and requires pressure-area care. When examining him, the junior doctor notices that he would benefit from removal of a mole on his lip––this is benign, but might become malignant in the future.

Clearly Yusuf is incapable of making a decision. He has an immediate and urgent need for neurosurgery and pressure area care. These treatments are in his best interest, can be given without his consent. On the other hand, there is no urgency about removing the mole from his lip. It would be appropriate to postpone this decision until he has had his neurosurgery. If this surgery is successful, he will be able to make the decision for himself.

Case study: dementia, refusal of personal care

On Wednesday, Sylvia (see above) continues to take the antibiotic, believing that this is a tonic. A side-effect of this antibiotic is diarrhoea. In the course of the day, she soils herself, and refuses to allow the nurse to wash her, stating that ‘a peck of dirt did no-one any harm’.

Sylvia still lacks capacity to consent to the antibiotic, and is taking it under a misapprehension. However, it is her best interests to receive it, so the nurses properly continue to give it.

She also lacks capacity to refuse to be washed. This is a serious problem for the nursing staff. It is manifestly unkind to force intimate care upon a resistant patient; this will rarely be in the patient’s best interests. The nurses should seek to provide necessary care in a way that is less restrictive of Sylvia’s liberty.

How to do so will vary from patient to patient. Common strategies include coming back later at a time when Sylvia’s perception of the situation might have changed, or allocating the task to different carers. It is often helpful to consult with a near relative of the patient. For example, it is possible that Sylvia’s daughter will be able to persuade her mother to accept a wash.

The “best interests” of a patient without capacity, and the duty to consult are included in the Mental Capacity Act (Northern Ireland) 2016.

Covert administration of medication

If a patient without capacity is refusing essential medication, the nurses need to consider what is in the best interests of the patient. It is rarely in a patient’s best interests to give medication forcibly. Nurses may wish to consider whether it would be in the patient’s best interests to give the medication ‘covertly’, i.e. to conceal the medication in food or a drink.

This is not a decision that should be taken lightly or informally. The NICE guidelines provide that there should be a ‘best interests’ meeting, attended by the patient’s carers, health professionals including the prescriber and a pharmacist, and a relative or friend of the patient or a mental capacity advocate (see 'Supporting capacity' box in this section).

The meeting should decide whether covert administration of medication is practical and in the best interests of the patient. A detailed care plan should be made to meet the patient’s needs. The care plan should be reviewed regularly.

 

Care of patients with a mental disorder

Treatment for a mental disorder may be given without consent if the patient has been detained (‘sectioned’) under the Mental Health (Northern Ireland) Order 1986 and/or the Mental Capacity Act (Northern Ireland) 2016 subject to statutory safeguards. This applies even if the patient has capacity. Mental health legislation more broadly is not addressed further here.

It is important to note that this only applies to treatment for the mental disorder. If a sectioned mental health patient requires physical treatment, the decision should be made in exactly the same way as for any other patient. i.e:

  • Patients with capacity may consent to or refuse the treatment.
  • Patients who lacks capacity may be treated without consent, in their own best interests.

This is illustrated in the case studies above, ‘refusing life-saving treatment’, ‘dementia, refusal of medication/personal care’, and ‘personality disorder, refusal of personal care’.

 

Withdrawal of life-prolonging treatment

Life-prolonging treatment may be withdrawn from a patient who lacks capacity if it is not in the best interests of the patient to continue the treatment. The decision should be made by the multi-disciplinary team, who should consult with the patient’s representative.

Some of these decisions are relatively simple. For example, if the patient is dying, and the effect of the treatment is merely to prolong suffering by hours or days, it may readily be agreed that the treatment should be withdrawn.

However, some decisions are extremely difficult and complex. An example is the decision whether to continue artificial feeding of a patient with prolonged loss of consciousness, who is not expected to recover. This is the subject of authoritative guidance by the GMC, which requires that a second opinion should always be sought before a decision is made.

Where there is a serious dispute about whether life-prolonging treatment should be withdrawn, the courts may need to make a decision. See ‘The role of the courts’, in the 'Supporting capacity' box within this section.

 

Cardio-Pulmonary Resuscitation (CPR)

Decisions about CPR can be particularly difficult. Authoritative guidance (‘the guidance’) has been given jointly by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing, summarised below.

CPR can be a life-saving treatment. However, survival following CPR is relatively rare: approximately 15–20% if the treatment is given in hospital; approximately 5–10% if the treatment is given outside hospital. Frail nursing-home residents with co-morbidities are particularly unlikely to survive CPR. CPR cannot reverse an underlying condition and may increase suffering. Those who survive may be brain-damaged. Where death occurs, the circumstances of the death are unlikely to be those that the patient or relatives would have wished.

Where practicable, a decision about CPR should be made in advance, rather than in a crisis. A patient with capacity should be fully involved in discussions, and given the best possible information upon which to make a decision. If the patient lacks capacity, a best-interests’ decision should be made by clinicians, after discussion with the patient’s representative. This may result in a ‘do-not-attempt-cardiopulmonary-resuscitation’ (DNACPR) decision. If this decision is made, it should be recorded in writing and prominently displayed in the patient’s records.

If alerted to a valid DNACPR decision, nurses may not lawfully give CPR, other than in exceptional circumstances such as choking or a blocked tracheostomy tube, where the cause of the arrest is readily reversible.

Unfortunately, decisions about CPR are not always made in a timely manner. Nurses have often had to make the decision in a crisis. In these circumstances, there is a presumption in favour of performing CPR. The guidance states:

If no explicit decision has been made in advance about CPR and the express wishes of a person are unknown and cannot be ascertained, there should be an initial presumption that healthcare professionals will make all reasonable efforts to resuscitate the person in the event of cardiac or respiratory arrest. In such emergencies there will rarely be time to make a comprehensive assessment of the person’s condition and the likely outcome of CPR.

In these circumstances initiating CPR will usually be appropriate, whilst all possible efforts are made to obtain more information to guide further decision-making. Healthcare provider organisations and healthcare professionals should support anyone initiating and delivering CPR in such circumstances.

 

Advance refusal of treatment

A patient may refuse a medical treatment in advance. The refusal must be made at a time when the patient has capacity to make a decision. The patient may withdraw the refusal of medical treatment at any time that s/he has capacity to do so, and the withdrawal need not be in writing. 

The nursing team will need to satisfy themselves that the advance refusal of treatment is valid. They should ask to see the original document (where applicable) and make a copy for the records. If in doubt, they should run this past a manager or lawyer to ensure that it is valid. 

Once alerted to a valid advance refusal of treatment, nurses must respect it; i.e. they must refrain from giving the specified treatments in the specified circumstances.

There are currently no statutory provisions in force which provide detailed codification for advance refusal of treatment decisions in Northern Ireland. The rules of advance decisions have been largely determined by the development of common law (Court decisions/Judgments). 

The Department of Health in NI undertook a review which outlines seven legal principles of common law regarding advance decisions to refuse treatment that have been identified by the Courts, these are:

  • There are no formal requirements for a valid advance decision, it may be oral or in writing.
  • There are no formal requirements for an advance decision, to be cancelled or revoked. This may be done orally or in writing.  
  • All advance decisions can be revoked/ cancelled. 
  • The existence and continuing validity and applicability of an advance decision is a question of fact (ie based on the evidence and facts arising from a particular situation eg is there proof that a decision exists?). Whether an advance decision has been revoked or has for some other reason ceased to be operative is a question of fact (ie based on the evidence and facts arising from a particular situation e.g. is there proof that a valid decision has been cancelled). . 
  • The burden of proof is on those seeking to establish the existence and continuing validity and applicability of an advance decision. 
  • Where life is at stake the evidence must be scrutinised with special care. Clear and convincing proof is required. The continuing validity and applicability of the advance decision must be clearly established by convincing and inherently reliable evidence. 
  • If there is doubt, this will fall in favour of the preservation of life

The revised Mental Capacity Act (Northern Ireland) 2016 has not yet been fully implemented. The act is partially commenced which means that some provisions which support capacity have now been implemented whereas other provisions have not yet been implemented but will be introduced at a future date.

The more relevant provisions are outlined below.

 

Best interests (this has been implemented)

The 2016 Act provides guidance on supporting decisions for consent. Where a person lacks capacity, any decision to provide treatment must be done or made in the person’s best interests.

When determining what would be in the best interests of a patient, the nurse or person making the determination must not make it merely on the basis of the patient’s age, appearance, or any other characteristic or condition the patient has, which might lead others to make unjustified assumptions about what might be in the patient’s best interests.

The person making the decision or ‘decision maker’ must consider all the relevant circumstances, and must also consider whether it is likely that the patient will at some time have capacity in relation to the matter in question, and if so, when that will be. 

While the legislation is not fully in place in Northern Ireland nursing staff need to be aware that the following people can be involved in supporting a best interest decision and the decision maker for consenting to treatment or care on behalf of someone else.

 

Nominated persons (this has been implemented)

A nominated person may be (i) appointed by the patient themselves at any time when he or she has capacity to do make the appointment (this appointment remains effective even where the patient subsequently loses that capacity); (ii) A nominated person may be appointed by the Review Tribunal following an application.

A nominated person application can come from any number of “qualifying persons” including;

  • appropriate healthcare professionals such as registered nurses, attorneys, deputies, and relatives

  • or 

  • they may also be appointed by default where neither of the above are in place. 

The default list for a nominated person includes the patient’s carer, spouse or civil partner, child, parent, sibling, and other family members, and the default nominated person is whoever is most appropriate in terms of the care provided.

Nursing staff need to ascertain whether there is a nominated person in place. Where there is, the nurse has a duty to consult that person regarding whether an act or decision is in the patient’s best interests can be made (see above). 

 

Mental capacity advocates (not yet implemented)

Under the implementation of the Mental Capacity Act (Northern Ireland) 2016 (“the 2016 Act”), advocates will be introduced in Northern Ireland. Although not currently in place, the information here reflects what is anticipated and best practice for Northern Ireland.

When making major decisions about an adult who lacks capacity, nurses should always consult someone who can speak on behalf of the patient. Usually this will be a family member or friend. 

If no other suitable person is available, and the circumstances require it, an independent mental capacity advocate may be instructed by the relevant Trust upon request.  

Where instructed, nurses should consult and take into account the views of the independent mental capacity advocate, where practical and appropriate. The requirement will not apply in an emergency, and relates to ‘relevant acts’, defined as: 

  • an act which amounts to a deprivation of the person’s liberty, or one of a number of acts that together amount to such a deprivation;
  • the imposition on the person of a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment that would or might be treatment with serious consequences;
  • the imposition on the person of a community residence requirement;
  • the provision of serious compulsory treatment;
  • a serious compulsory intervention not falling within paragraphs (a) to (d). 
Mental health legislation more broadly is not addressed further here.

When determining what would be in the best interests of a patient lacking capacity regarding an act or decision, a nurse or decision maker need to (so far as practicable and appropriate) consult a mental capacity advocate, where one has been instructed or appointed.

 

Power of attorney for health and welfare (future changes regarding power of attorney are due to come into effect in Northern Ireland but are not yet in place - see below)

It is possible to appoint an attorney to make certain decisions on your behalf at any time in the future when you do not have the capacity to make these decisions yourself. The power of attorney must be granted at a time when you have capacity to make these decisions yourself. Before a power of attorney comes into force, it must be registered within the High Court of Northern Ireland, namely with the Office of Care and Protection.

In Northern Ireland, there is no formal ‘lasting power of attorney for health and welfare’, arrangement as there has been in England and Wales since 2005. However there is forthcoming legislation, not yet Implemented, which will introduce “Lasting Powers of Attorney" for health and welfare in Northern Ireland.

This will allow for a lasting power of attorney by which the patient confers on the attorney (or attorneys) the right to make decisions about:

  • the patient’s care treatment and personal welfare and
  • the patient’s property and affairs.

There will be a number of statutory requirements and formalities that must be complied with.

General and Enduring Powers of Attorney are currently available in Northern Ireland. They can be used to give one or more people the authority to manage a person’s property and financial affairs for a limited time, or if they lose their mental capacity. They do not relate to decisions regarding health.

When determining what would be in the best interests of a patient lacking capacity regarding a particular act or decision, lasting and enduring powers of attorney, where they exist, would be considered an appropriate person to help support make a best interest decision and the nurse or decision maker must, so far as practicable and appropriate to do so, consult with them.

 

Personal welfare deputy (not yet implemented in Northern Ireland)

In England and Wales, the court may appoint a person to make health and welfare decisions on behalf of a patient who lacks capacity. The person is appointed by the Court of Protection, and is known as a ‘personal welfare deputy’. An appointment is made only in exceptional circumstances, for example, if there is a serious dispute between relatives, or between relatives and healthcare practitioners.

In Northern Ireland, legislation is being introduced to effectively imitate the above position but it is not yet in place.  The Court (High Court) will have the power to appoint and revoke deputies, and in certain circumstances make decisions and declarations itself.

Where deputies are in place, nurses will need to satisfy themselves that the deputy or guardian has been validly appointed. They should ask to see the original documentation and make a copy for the records. If necessary, they should run the documentation past a manager or lawyer to ensure that the appointment is valid.

When determining what would be in the best interests of a patient lacking capacity regarding an act or decision, where a deputy has been appointed the nurse or decision maker must, so far as practicable and appropriate to do so.) consult with them in making the decision.

In rare circumstances, decisions about the care of adults may need to be made by a court - either the Office of Care and Protection or a civil court.

Large healthcare providers should have procedures in place for seeking a court order if necessary. Junior nursing staff cannot be expected to know what these are. However, nurses who have grave concerns about the welfare of a patient should consult their managers as necessary.

Examples of situations where the courts may need to be involved are given below.

Non-therapeutic sterilisation of an adult who lacks capacity should only take place if authorised by a court, even if the relatives and healthcare staff agree that sterilisation is in the adult’s best interests . The courts will hear evidence and arguments on both sides of the question, in order to make a decision in the best interests of the patient.  If necessary, the official solicitor will ensure that the evidence and argument against sterilisation are heard by the court before a decision is made.

If there is disagreement about the withdrawal of life-sustaining treatment, the decision should be made by a court. For example, an NHS care-provider may seek a declaration by the court that withdrawal of treatment would not be unlawful; the patient’s relative may seek an order to continue treatment.

On the other hand, if there is agreement between healthcare staff and the patient’s representative, it is not necessary to seek authorisation by the court to withdraw treatment.

If an attorney is thought not to be acting in the best interests of a mentally incapacitated person, the Court of Protection has the power to revoke the power of attorney.

If there is a dispute about the capacity of an adult to consent to or refuse treatment, the courts may need to determine the question. The facts of the case study below are taken from a case that went to court in 2020.

Case study: capacity of an anorexic patient refusing artificial feeding, and her best interests.

AB was aged 28. She had severe, long-standing anorexia nervosa. She was at imminent risk of a cardiac arrest. The only realistic option to save her life was artificial feeding. She refused this treatment. The NHS trust sought a declaration from the court that it would be in AB’s best interests not to receive artificial feeding, despite the fact she was likely to die without it.

Having heard AB’s evidence, the court determined that AB’s judgment was ‘critically impaired by an intense and irrational fear of weight gain’, and that she lacked capacity to make the choice. Nevertheless, force-feeding would not be in AB’s best interests; she should be permitted to make autonomous choices in respect of other aspects of her care; palliative care should be made available if and when it became necessary.

 

Offences

The Mental Capacity Act (NI) 2016 created a number of specific criminal offences, which include the following which nurses should be aware of:

  • Ill treatment of neglect: Where a person, who has the care of someone who lacks capacity or they believe to lack capacity, ill-treats or wilfully neglects that person.
  • Forgery, false statements: Where a person, knowingly or recklessly makes a false statement, or makes use of an entry or statement they know to be false with intent to deceive.
  • Unlawful detention of persons lacking capacity: Where a person knowingly detains a person in circumstances amounting to a deprivation of liberty who is 16 years or over and lacks capacity in relation to whether he or she should be detained, and who is not liable to be detained under the legislation, OR Intentionally detains a person in circumstances amounting to a deprivation of liberty, in purported reliance on the legislation (relating to Police and Criminal Justice), where the person is not liable to be detained under it.
  • Assisting persons to absent themselves without permission: Where a person knows another is liable to be detained in circumstances amounting to a deprivation of liberty and induces, or intentionally assists the person to absent themselves without permission from that place, OR the person has already absented themselves and a person allows the other to live or stay with them, or assists them with the intention of preventing, delaying or interfering with their return to detention OR when the person is being brought to a place for detention, a person induces, or intentionally assists them, to escape.
  • Obstruction: Where a person refuses to allow the visiting or examination of another by one who is authorised by virtue of legislation to do so, OR refuses to produce any record which is required by virtue of the relevant legislation OR otherwise obstructs a person doing either of the above.

 

Protection from liability for acts in best interests of persons lacking capacity

Part 2 of the Mental Capacity Act (Northern Ireland) 2016 also provides a degree of protection from liability for nurses who undertake treatment deemed to be in the best interests of persons over the age of 16 lacking capacity.

This guidance does not delve into this area but further information can be found here.

Consent and children

Nurse talking to mother and child As outlined in the basic principles section; consent in children relies the person with parental responsibility consenting to treatment on behalf of the child where the child doesn’t have capacity.

In the law of Northern Ireland, a person under 18 years’ old is a ‘child ’.

 

Parental consent

Provided that they have capacity (see above), parents (i.e. persons with parental responsibility) can give or withhold consent to treatment of their children.

‘Parental responsibility’ is defined here. In the remainder of this guidance, the word ‘parent’ will be used to mean any person with parental responsibility.

 

16-17 year olds

16-17 year olds with capacity can also give or withhold consent. As with adults, there is a presumption of capacity. However, their parents retain the right to give or withhold consent. The complications that arise from this situation will be explored below.

 

Children under 16: Gillick-competence

In certain circumstances, a child under 16 may give a valid consent to medical treatment. The nurse must be satisfied that the child has achieved ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. This is known as ‘Gillick-competence’ after a court case brought by Victoria Gillick in 1986.

The parents of a Gillick-competent child retain the right to give or withhold consent.

Nurses should note the following principles when considering whether a child under 16 is Gillick-competent:

  • Practically speaking, Gillick-competence is identical to ‘capacity’. The child must understand the benefits and risks of the treatment, and the consequences of not receiving the treatment.
  • However, there is no equivalent of the ‘presumption of capacity’ for children under 16. The nurse should specifically assess the understanding of the individual child before concluding that the child is Gillick-competent.
  • It is best practice to make a record of this assessment.
  • Like capacity, Gillick-competence is decision-specific. A child might be competent to make one decision but not another.

These principles are illustrated in the case study below.

Case study: Gillick-competence

Naheeda is an intelligent 13-year-old girl, with type-1 diabetes. She manages her own blood sugar measurements and insulin injections. She makes an appointment with Emma, a nurse-practitioner at her GP surgery, and attends this appointment alone. She has attended all previous medical appointments with one or both parents.

She explains that she has early symptoms of a urinary infection, and shows a very good understanding of the need to treat this infection promptly and to monitor her diabetes closely while the infection is brought under control. She has had trimethoprim before, and knows the benefits and potential side-effects. Emma records that Naheeda is competent to consent to antibiotic therapy, and prescribes trimethoprim.

Naheeda also wishes to discuss a change in the treatment of her diabetes, from insulin injections 4 times a day to an insulin pump. She explains that her cousin is now using an insulin pump successfully.

Emma believes that this change of treatment might well be appropriate, but is not confident that Naheeda understands all the implications. She makes a record of her reservations, and asks Naheeda to make another appointment, to be accompanied by one or both of her parents, to discuss this.

 

Providing treatment on the basis of one person’s consent

The general rule is that nursing staff may lawfully administer treatment to children on the basis of one person’s consent only. Examples are given below:

  • In the case study above, Emma need not consult Naheeda’s parents about the antibiotic treatment.
  • If one parent subsequently consents to a change to Naheeda’s diabetes treatment, Emma need not consult the other parent.
  • A school nurse may give a vaccine to a consenting Gillick-competent child without consulting the child’s parents.

However, if nursing staff become aware of a dispute between parents, or between a parent and the child, they should consider carefully whether to proceed with the treatment or not. See the 'Consent specific issues' box in this section for more information.

Contraceptives to children under 16

Under the criminal law, the age of consent for sexual activity with another person is 16. Any person who knowingly engages in sexual activity with a person under 16 commits an offence.

This raises a particular problem if a person under 16 seeks contraceptive advice. The law on this matter is set out in the case of Gillick. A practitioner my lawfully provide contraceptive advice, or prescribe contraceptives, to a competent child under 16, without the knowledge or consent of the parents, if satisfied that:

  • The child will understand the advice;
  • That the child cannot be persuaded to inform his or her parents, or to allow the practitioner to do so;
  • That the child is likely to engage in sexual activity with or without contraceptives;
  • That, without contraceptive advice, the child’s mental and/or physical health is likely to suffer;
  • That the child’s best interests require contraceptive advice or treatment, without parental consent.

These are sometimes referred to as the ‘Fraser guidelines’, since they were set out by Lord Fraser in his judgment in the Gillick case.

 

Urgent treatment in the absence of consent

If a child is at imminent risk of death or serious harm, but a valid consent cannot be obtained for the necessary treatment, it is lawful to give this treatment without consent. See the case study below:

Case study: emergency treatment of a child

Alan, age 9, has an epileptic seizure at school. He is brought to A+E by ambulance, unconscious. While in A+E, he has further seizures. It has not been possible to contact his parents. Without immediate treatment for his seizures, he is likely to die or suffer brain-damage.

Staff should, of course, give all the treatment necessary to bring Alan’s seizures under control, and not wait until parental consent is available.

 

Life-saving treatment that is refused by parents or the child

Difficult situations arise when parents or a competent child refuse life-saving medical treatment. Most commonly, the reasons for refusing are religious; for example, if the child is a Jehovah’s witness, and either the parents or the child or both refuse a blood transfusion.

The general rule is:

  • Life-saving treatment may usually be given to children (unlike adults) against their will, and/or the will of their parents.
  • If there is time to do so, clinical staff should seek a court-order, requiring the treatment to be given.
  • However, if there is no time, emergency life-saving treatment should be given without consent or a court-order.

NHS trusts and other healthcare organisations should have procedures for seeking an emergency court order where necessary. It should be noted that, when a child’s life is at stake, a court-order can usually be obtained the same day. Again, junior nursing staff cannot be expected to know or understand legal procedures, but should consult their managers if they have serious concerns about the welfare of a child.

The courts, in practically all cases, have ruled in favour of life-saving treatment being given. In a 1992 case , the judge summed up the principle as follows:

'…the present state of the law is that an individual who has reached the age of 18 is free to do with his life what he wishes, but it is the duty of the court to ensure so far as it can that children survive to attain that age.’

This principle has not changed since 1992. For example, in a 2021 case, the court ruled that a 15-year-old girl with sickle-cell disease, who had been baptised as a Jehovah’s witness, should continue to have top-up blood transfusions despite her competent refusal of these.

The role of the courts

The role of family and civil courts was alluded to above. This is not confined to life saving treatment. For example, the courts may come to be involved in the following circumstances:

  • Parents disagree about whether a treatment should be given;
  • Parents disagree with a competent child;
  • Social Services, medical staff, or other competent professionals have concerns that treatment decisions made by the child’s parents are not in the best interests of the child.

In all cases, the court is required to treat the best interests of the child as of paramount importance. The term 'best interests' is used in a wide sense, and in not confined to the medical considerations, e.g.:

  • The wishes of the child, if known, are taken into account, in view of the potentially harmful effects of denying autonomy to a child. However, these are not decisive.
  • The wishes of the parents are also taken into account, in view of the importance of the parent-child relationship. Again, these are not decisive.
  • The parents’ wish to bring the child up in a particular religion is treated with respect, as are any religious affiliations that the child may have, independent of the parents. However, these are unlikely to be decisive, if there is a risk of serious harm to the child.

 

When the nurse is notified of a dispute

A nurse who is alerted to a dispute may need to delay non-urgent treatment until this dispute is resolved. This is illustrated in the case studies below:

Case study: dispute between parents, vaccination

Agnieszka’s mother makes an appointment to bring 1-year-old Agnieszka to the surgery for her MMR vaccine. In the ordinary way, the practice nurse would give this vaccine on the basis of the mother’s consent alone. However, before the appointment takes place, the surgery receives a letter from Agnieszka’s father, objecting to the inoculation on the basis that this might cause autism and inflammatory bowel disease.

In this situation, the practice nurse should delay vaccination until the dispute has been resolved. The dispute may need to be resolved in the Family Courts. In a number of cases, the courts have ruled in favour of vaccination, but this should not be presumed.

Case study: dispute between parent and child, circumcision

12 years later, Buster, aged 14, seeks circumcision on his own behalf for religious reasons, which he articulates well. His father has died in the interim. His mother still opposes the operation.

Here, the balance has shifted in favour of circumcision. However, Buster is still a child; circumcision is an irreversible procedure, which would have major implications for him in the future. At age 14, there may be doubts as to whether he can fully understand these implications. Best practice would be to defer a decision about surgery until the dispute has been resolved, in court if necessary.

Case study: Gillick-competent child, vaccination

12 years later, Agnieszka, aged 13, requests an MMR vaccine on her own account. She shows a good understanding of the effects and potential side-effects of the vaccine. It is known that her father still opposes the vaccine.

It is normal and good practice to administer a vaccine to a Gillick-competent child in these circumstances. In contrast to circumcision, the implications of the vaccine can readily be understood by teenagers; there are real and immediate health-benefits to the child and no real prospect of long-term complications or difficulties. In the circumstances, the nurse may reasonably conclude Agnieszka’s consent should override her father’s objection.

If in doubt…

Colleagues talking Most decisions about consent, capacity, competence and best interests are quite straightforward.

However, situations do arise where nursing staff have to make difficult decisions.

A guide like this cannot cover every situation that might arise. If in doubt, you should:

  • Consult with colleagues, e.g. peers, managers, and senior healthcare professionals from other disciplines;
  • If necessary and practical in the time available, consult with external organisations, (e.g. the RCN if you are a member) who can give professional advice;
  • Make a detailed record of your concerns, and of your consultations with others;
  • Make a record of your decision, whatever it is, and the reasons for it.

Nursing staff will rarely be criticised for a decision about which they have consulted appropriately, and which they can justify, even if there is room for disagreement.

 

Acknowledgements

We would like to thank the following groups for their help in developing this resource:

  • RCN Nursing department
  • RCN Law
  • RCN Public Health Forum

Page last updated - 14/03/2022