Yes or No: A brief guide to the law on consent

1. Yes or No: A brief guide to the law on consent 25 June 2010 Helen Burnell

2. Contents • General principles • Human Rights Act 1998 – important points • Consent – the competent person • Consent – the adult who lacks capacity • Consent – children and young people

3. Contents continued • Practical points to note • Useful links

4. General principles • Consent is central to all medical interventions. • The lawfulness of treatment relies on valid consent. • A lack of (valid) consent may amount to a criminal offence of assault or battery.

5. General principles continued • The basis of consent is respect for self autonomy, both physical and a person’s right to self-determination.

6. Human Rights Act 1998 • Article 8 of the ECHR • Art 8 outlines the right to respect for an individual’s private and family life. • It can be interfered with, if justified, under Art 8(2), i.e. that it is necessary in a democratic society.

7. Human Rights Act 1998 • Article 3 of the ECHR • No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

8. Consent – the competent person • A valid consent requires: • That it be given by a competent person. • That the person must be told enough to be adequately informed of the nature of the proposed intervention. • The person must voluntarily consent to the intervention.

9. Common issues to note • Circumstances where it is not clear what the patient wants. For example: • Family members/friends/carers who are dominant and speak for the patient. • Elderly patients who defer to family members.

10. Consent – adults who lack capacity • Those aged 16 and over are governed by the Mental Capacity Act 2005. • See hand out for statutory test and key considerations.

11. Consent – children and young people (introduction) • Complex area of law. • The statutory provisions and case law are not consistent. • Tension between the autonomy/rights of children/young people/those who hold PR/health professionals.

12. Who is a child/young person? • Child • Those aged 0 – 16. • Young person • Those aged 16 - 18

13. Non competent children • Treatment may be provided on the basis of consent from someone who holds PR. • Child’s wishes should be taken into account. • If a programme of treatment is not agreed to in advance, consent for each intervention should be sought.

14. The Gillick competent child • A child who has sufficient understanding and intelligence to enable them to understand fully what is involved in a proposed intervention.

15. The Gillick competent child continued • If the child can give consent after receiving appropriate information, that consent will be valid. It is however good practice to consult with a person who has PR for the child, if the child consents to information being shared.

16. The young person with capacity • MCA does not apply – assumption is that they can refuse/consent. • Possible legal avenues where there is a lack of consent: • Section 8 of the Family Law Reform Act 1969 – can consent but not refuse treatment. • Children Act 1989 • Inherent Jurisdiction of the High Court

17. The young person who lacks capacity • MCA 2005 applies, as for adults. • See handout (as above)

18. Practical points to note • Your Trust will have a consent policy and forms. • NHSLA used to require strict adherence to DH policy and forms. It is now more flexible, allowing Trusts to demonstrate policy and practice in a less prescriptive way.

19. Useful links • For general consent issues (Mills & Reeve LLP clients only) • www.mills-reeve.com/hrc • For consent forms • http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_103643

20. Helen Burnell Associate