Consent policy

Consent is defined as “permission for something to happen or agreement to do something” (Oxford English Dictionary). In relation to health care, it is a general legal and ethical principle that valid consent must be obtained before commencing an examination, starting treatment or physical investigation, or providing care.

This principle reflects the rights of a person to determine what happens to their own bodies or what shapes the care and support they receive. It is fundamental to good practice. The Nursing and Midwifery Council (NMC) professional practice document for Nurses and Midwives, The Code (NMC, 2015) states that registered nurses must:

(4.1) “balance the need to act in the best interests of all people at all times with the requirement to respect a person’s right to accept or refuse treatment”, and

(4.2) “make sure that you get properly informed consent and document it before carrying out any action”.

Registered nurses who do not respect this principle may be liable to both legal action by the person in their care and action by the NMC.

The requirement to gain consent has two purposes, one legal and the other clinical (Richardson V, 2013). The legal purpose is to provide those delivering treatment with a defense to a criminal charge of assault or battery or a civil claim for damages for trespass to the person.

The clinical purpose comes from the fact that in most cases the co-operation of the person and the person’s confidence in the treatment is a major factor in their consenting to the examination, treatment or physical investigation, or the provision of care.

What is meant by “valid consent”?

For consent to be valid, it must be given voluntarily and freely, without pressure or undue influence, by an appropriately informed person who has the capacity to consent to the intervention in question. Some people may feel pressurised, by relatives or carers for example, to accept a particular investigation or treatment.

Registered nurses should be aware of this, and of other situations in which people might be vulnerable, for example, those resident in a care home, or in prison. In these situations it is essential to ensure that the person has considered the available options and has voluntarily reached their own fully informed decision.

Emergency situations

In emergency situations, the need to initiate immediate treatment may limit the quantity of information necessary for the patient to give an informed consent.

However, due care should be exercised to ensure that any legally binding wishes of the patient, expressed in advance of the emergency, are not overlooked. If the patient is well enough and has the sufficient capacity to understand the situation he/she has the right to refuse treatment, even if this decision may have a negative impact on health or wellbeing.

Such decisions should be recorded in the patient’s care plan and reflect the involvement of the patient in the decision-making process. If the patient is unconscious, or an emergency occurs when a patient is under general anesthetic, staff may act in his/her best interests without consent in order to protect life and future health.

On occasions, staff may need to seek legal advice before initiating treatment or care, although this may not always be practicable in an emergency situation.

Obtaining consent

What is meant by “informed consent”?

Several recent and less recent judicial reviews and rulings by the Supreme Court have confirmed that the need for “informed consent” is a legal requirement.

Many interventions are not a simple “yes/no” situation; it is not enough to provide adequate information to ensure consent for the examination, treatment and/or care.

Sufficient evidence based information must be provided to the person to enable them to make a balanced and informed decision about their care and treatment. As well as a general explanation of the procedure there is also a duty to explain the risks inherent in the procedure and the risks inherent in refusing the procedure.

Information must also be provided regarding alternatives to the proposed intervention. This will assist the person to make the decision to consent to, or refuse consent for a particular intervention, whilst respecting their right to autonomously decide what happens to them.

Failing to meet this legal duty can give rise to an action in negligence if the person is subsequently harmed.

Obtaining consent is a process rather than a one-off event. When a person is told about proposed treatment and care, it is important that the information is given in a sensitive and understandable way. The person should be given enough time to consider the information and the opportunity to ask questions if they wish to. You should not assume that the person in their care has sufficient knowledge, even about basic treatment, for them to make a choice.

The NMC Code supports involving people in the care giving processes. It clearly states: “You must uphold people’s rights to be fully involved in decisions about their care.” It is essential that they are given sufficient information to enable them to determine whether or not to accept or decline treatment and care. This right is supported in the Code where it states: “You must respect and support people’s rights to accept or decline treatment and care.”

If a person feels the information they have received is insufficient, they could make a complaint to the NMC or take legal action. Most legal action is in the form of an allegation of negligence. It is therefore essential that nurses and midwives ensure that they: “…share with people, in a way they can understand, the information they want or need to know about their health.” In exceptional cases, for example, where consent was obtained by deception or where not enough information was given, this could result in an allegation of battery. However, only in the most extreme cases is criminal law likely to be involved.

Forms of consent

The validity of consent does not depend on the form in which it is given. Consent can be expressed in writing, verbally or non-verbally.

In most cases completion of a consent form is not a legal requirement, (exceptions being prescribed forms associated with mental health legislation Act 2000, Mental Health (Northern Ireland) Order 1986, Mental Capacity on should be taken into account.and the Human Fertilisation and Embryology Act 1990).

Although written forms serve as evidence of consent, the completion of any consent form or documentation must meet with the requirements that constitute valid consent, i.e. the person has the capacity to make the decision, sufficient information has been provided to ensure that consent was “informed”, and that consent has been freely given.

Where a person is illiterate or unable to fully complete their signature, but is able to provide valid consent, they may be able to make a mark on the form to indicate consent. It is good practice to have the mark witnessed by another clinician. If consent has been validly given, the lack of a completed form is no bar to treatment or care.

Consent for sharing information

There is a requirement in the NMC Code (NMC, 2015) at paragraph 5, which explicitly requires nurses to respect a person’s right to privacy and confidentiality.

When a person discloses personal health information to a health or social care professional, it is generally accepted that care cannot continue unless it is shared with other staff involved in their care. This could include both health and social care staff and administrative staff.

Registered nurses must ensure that implied consent to sharing of information is not assumed in these circumstances and that any disclosure of information to others is absolutely essential for the provision and continuation of care, and in accordance with the requirements of the Data Protection Act (1998) and the Human Rights Act (1998). The duty of confidentiality applies to both adults and children and young people (as clarified in the Gillick principle).

Circumstances and that any disclosure of information to others is absolutely essential for the provision and continuation of care, and in accordance with the requirements of the Data Protection Act (1998) and the Human Rights Act (1998). The duty of confidentiality applies to both adults and children and young people (as clarified in the Gillick principle).

Should the person state that they do not want information to be shared with anyone, a registered nurse has no permission to do so.

There is however a recognition that the duty of confidentiality is not absolute. In certain situations a registered nurse could be required to disclose information without the consent of the individual involved.

These circumstances may exist where there is a real and serious risk of danger to the public or an identifiable individual, or in the case of a child/young person or where a person with capacity is considered vulnerable. The onus will be on the registered nurse to provide evidence that the absence of consent and a breach of confidentiality meets these specific requirements.

Children and young people

It is particularly important that registered nurses working with children and young people understand the laws around capacity, and child and parental consent, including giving and refusing consent for the implementation of any treatment or intervention.

In Northern Ireland the legal age of capacity is 18. However, under section 4 of the Age of Majority Act (Northern Ireland 1969) young people aged 16 -17 are entitled to provide consent for their own medical treatment in the same way as adults this provides a legal basis for a young person under the age of 16 years to consent on his or her own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending them, they are capable of understanding the nature and possible consequences of the procedure or treatment. These provisions need to be considered in conjunction with the rights of those with parental responsibility and human rights law.

In other circumstances, current case law is based on the view that persons aged under 16 years, may be competent to make decisions about their care and treatment when provided with sufficient information in a suitable format.

This is sometimes referred to as “Gillick” competence. This principle recognises the concept of emerging capacity in children and young people. Cognitive and emotional skills are acquired differentially throughout adolescent development. Whilst decision-making is primarily dependent on information retention and processing, emotional maturity is needed.

Consent of people who are mentally incapacitated

Relevant mental health legislation and capacity legislation includes The Mental Capacity (Act 2005) Mental Health (Northern Ireland) Order 1986, Mental Capacity Act Northern Ireland (2016), make provision for the possibility of detention/deprivation of liberty and/or treatment for a mental disorder and its complications without the consent of the adult, or a young person aged under 18 years.

If an adult has been assessed as lacking the capacity to make a specific decision then there are formal legislative processes that allow for a decision about care, treatment or support to be made on their behalf.

These are commonly known as “best interests’ decisions”. Best interests are not confined to best medical interests. Most organisations will have established protocols based on legislative requirements and recognised good practice principles.

Professional accountability

Professional accountability means being personally answerable to the law of the land for all actions or omissions (including what is written or is not written, what advice/ information/communication is given or is not given) while fulfilling a contract as a health and social care employee.

Registered nurses must act first and foremost to care for and safeguard those in their care. Registered nurses must display a personal commitment to the standards of practice and behaviors set out in the NMC Code. NMC states that registered nurses must “show professionalism and integrity and work within recognised professional, ethical and legal frameworks” (NMC, 2015).