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Consent

This guide for RCN members provides information relating to consent.

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The law requires that a patient must give valid consent before treatment, physical investigation or care is given. If there is no valid consent, then the patient could take legal action against the health professional.

All patients have a right to information about their condition and the information must presented in a way that it is easily understood. Health professionals should ensure that the information is accurate and truthful. This is fundamental to good practice.

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To be valid, consent should be freely and voluntarily given. There should be no pressure or undue influence exerted on the patient by relatives, partners or health care professionals. If the carer believes this is a risk, they should arrange to see the patient on their own to establish that the decision is truly that of the patient.

The patient must have the capacity to understand and retain information, and weigh up the risks and benefits involved.

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Informed consent is given once the patient has received enough information to make an informed decision about their treatment.

The patient should have all of the information available about the treatment and care that they will receive. This includes the possible effects or risks, and other treatment options. The patient must understand this explanation in broad terms. Misrepresentation of information will invalidate consent. This duty to inform is as important as the duty to carry out diagnosis and treatment.

The patient must be legally competent to give consent.

Consent can only be given by the patient. Whether the patient is an adult, young person or child they are able to give valid consent as long as they have sufficient understanding to fully comprehend the treatment being proposed. This includes:

  • having the capacity to make treatment decisions
  • being able to weigh the risks and benefits involved
  • understanding in broad terms the nature and purpose of the treatment.

In general, a competent adult is a person who:

  • has reached 18 years of age
  • has the capacity to make treatment decisions on his/her own behalf
  • is able to weigh the risks and benefits involved
  • understands in broad terms the nature and purpose of the treatment.

In Scotland a person aged 16 years and over is presumed to be competent to give a valid consent to treatment.

In England, Northern Ireland and Wales a young person is generally anyone of 16 and 17 years. They can generally give valid consent for their own treatment. A refusal to consent can be overridden in certain circumstances by a person with parental responsibility or by a court.

A child is anyone under the age of 16 years (or under 18 under the law of Northern Ireland, Scotland and Wales). A child is able to give valid consent to treatment if they have sufficient understanding and intelligence to fully comprehend what is being proposed. This is often referred to as "Gillick competence" as per Fraser guidelines

In the case of children, it is good practice to involve the family in the decision-making process, unless they specifically wish to exclude them. It's important to note that children and young people have the same right to confidentiality as an adult.

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Consent may be given in writing or verbally. It may be expressed clearly or it may be implied. Implied consent is usually determined by the patient’s/client's acceptance of treatment given. Verbal or implied consent will be enough in most cases.

In practice try to ensure the following:

  • a written consent form should be obtained where treatment or care is risky, lengthy or complex
  • a written consent form should be obtained if the treatment requires sedation or anaesthesia
  • a record of the discussion leading to the decision is placed in the patient's/client's records
  • any refusal of treatment should be documented and kept with the summary of discussions.

Be aware that even if a patient/client has signed a consent form, they may then refuse the treatment at a later date. They may do this verbally or in writing and the refusal can be implied.

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Competent adults can refuse to consent to treatment for any reason or for no reason at all. The guidance varies depending on the circumstances. Any refusal should be clearly documented. Please see the section above.

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Mental health

Adults with mental illnesses can refuse to consent to treatment for any procedure unconnected with their mental illness.

The Mental Health Act (1983) sets out various legal rights that apply to people with severe mental health problems. The act also contains the powers which, in extreme cases, enable some people with mental health problems to be compulsorily detained in hospital.

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Children and young people

Children who understand fully what is being proposed can consent to treatment, but may not be able to refuse treatment.

In some cases persons with parental responsibility, or a court, may be able to override the child's refusal. In such cases, it is important that the health professional seek legal advice as the issue may need to be determined by the courts.

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Advance decisions

An advance decision is a legally binding document that sets out in advance the treatments and procedures that someone does or does not consent to.

It is written and signed by a competent person with the intention that the instructions within the document will still be effective should that person ever become 'incompetent' to make the decision about their treatment. A person can at any time elect to express their preference  that, should they lose capacity, conditions that have not yet arisen and/or current conditions which could deteriorate in the future, are not treated.

The validity of the advance decision as a formal document has been upheld in the courts.

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Although consent is generally required, it may not be needed in the following circumstances:

  • Emergency situations where treatment is necessary to preserve health or life. The treatment must be in the best interests of the patient until they recover, when longer term measures can be considered. This applies to children and adults. Please note: you must not provide treatment if an advance decision has been made, and you know the patient would object to the treatment.
  • Mental health: The Mental Capacity Act (2005) is designed to protect people who cannot make decisions for themselves. It explains when a person is considered to be lacking capacity, and how decisions should be made in their best interests.
  • Children and young people under 16 years: A child patient should be treated if they are in danger of death or serious disability where there is no one with parental responsibility prepared to consent and no time to make an application to court.
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It is essential that:

  • the decision is made carefully in consultation with the multi-disciplinary team and with relatives where appropriate
  • all decisions are made in line with local guidelines and protocols and based on professional and evidence based practice
  • any decisions are carefully documented. This includes clear reasons for the decision to treat without consent, how the decision was reached including details of assessment and outcome.
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Additional resources

Nursing and Midwifery Council (NMC) Code

Country-specific guidance is available at the following websites:

Please also refer to your employer’s policies on consent/refusal.

For advice on referencing this web page, refer to your university's guidance. There are different styles of referencing so it's important to check which one is preferred by your course provider. You can read more about referencing on the RCN's library site.  

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