There are no statutory provisions in England regarding consent of adults to medical treatment, other than adults who are subject to the Mental Health Act. Even then, the Mental Health Act only permits compulsory treatment in relation to the psychiatric condition for which the patient has been "sectioned". The position in relation to children is different. Section 9 of the Family Law Reform Act 1969 provides that the consent to medical treatment of a child of 16 or 17 is as valid as that of an adult. The section has no application to refusal of treatment by a 16 or 17 year old. The law in Scotland is different and is addressed below.

The Law Commission (Mental Incapacity 1995; Report No. 231) made recommendations to change the law on the area of mental incapacity. A draft Bill the "Mental Incapacity Bill" is likely to be introduced soon to Parliament.

1997 consultation paper 'Who Decides'
The Lord Chancellor's Department: Mental Incapacity, May 2003

Form of Consent (Express / Implied)

Consent provides lawful justification for treatment. If valid consent is not given, any treatment which involves touching e.g. physical examination, surgery, dressing a wound, would amount to a battery.

There is no legal requirement that consent should be written, or be in a particular form - oral consent is valid (or it may be implied from circumstances, where for example a patient undresses prior to examination). However a written consent form provides evidence of consent and is recommended for major interventions such as surgical procedures. The Department of Health has produced standardized consent forms.

Consent may be withdrawn at any time, even after signing of a consent form, and to proceed with treatment where consent has effectively been withdrawn would constitute a battery.

In order for consent to be valid it must be:

• given by someone who is competent (has legal capacity)
• sufficiently informed
• freely given

Battery

Battery is any non-consensual touching - it does not have to harm the patient. A doctor can commit a battery even though the doctor considers he is acting in the best interests of his patient by treating him/her. To avoid liability in battery the patient should be informed in broad terms of the nature of the procedure that is intended to be carried out and give consent to it.

There are very few cases where a doctor has been successfully sued for battery.

Negligence

If the patient claims that he has not been sufficiently informed about the risks inherent in the treatment and alternatives to the treatment then liability does not lie in battery but rather in negligence. In deciding whether non-disclosure is negligent it is necessary to determine whether there is a responsible body of clinicians in the relevant field who would warn of the relevant risks (the Bolam test). In the area of disclosure of risk, however, the judges are more ready than in other areas of clinical negligence to go against expert medical evidence in deciding what amounts to "responsible" practice.

Recent judgments in legal cases have shown that a patient should be informed of risks if:

• the incidence of the risk is sufficiently high - for example a 10% risk of stroke
• if the risk materialised it would have serious consequences for the patient
• the patient specifically asks about a risk

Capacity to consent to treatment

Capacity is treatment specific - it depends on the treatment to be performed. If the treatment is risky / has potential serious side effects / is complicated, then a higher level of capacity is required than for treatment that is straightforward or less invasive. Thus a patient can have capacity to consent to one procedure, but not to another. Capacity can fluctuate.

Tests of capacity

There are different tests to assess capacity for adults and children.

Adults

An adult is a person 18 years and over. An adult is presumed to have capacity although this presumption may be rebutted if the patient fails a 3-part test. This was set out in the case of Re C.

A patient has capacity to consent / refuse medical treatment if he/she can:

• comprehend and retain treatment information
• believe it AND
• weigh it up to arrive at a choice

Adults who fail the Re C test do not have capacity to consent/ refuse treatment.

Children

In law, children are those who are under 18 years of age.

For the purposes of giving consent to treatment, children are treated differently in law according to their age.

The Family Reform Act 1969 provides that the consent to treatment of a 16 or 17 year old is to be treated like the consent of an adult. This has no application to a refusal of medical treatment or to non-therapeutic procedures like organ or blood donation. For those children under 16 there is precedent in case law governing consent to treatment. The law was set out in the case of Gillick (Gillick v West Norfolk and Wisbech AHA [1986] AC 112).

This states that if a minor has sufficient intelligence and understanding to enable him / her to understand the treatment and implications of treatment then he / she is 'Gillick competent' and can consent to treatment. (However a refusal of treatment may be treated differently - see below).

For babies, young children and teenagers who are not competent in law someone else must consent on their behalf. This can be a proxy or the Court. A proxy is usually a parent or another person with parental responsibility. In making a decision about medical treatment the proxy must act in the child's best interests and if this is not the case then the decision can be overridden by the court. Usually consent need be obtained only from one parent (although if treatment involves an operation that is irreversible and not medically necessary e.g. male circumcision if the two parents disagree it is advisable to seek advice from the court). If there is a difference of opinion between the parent (s) and the clinician regarding best interests the matter can be referred to the Official Solicitor who is likely to make an application to the court. In an emergency situation, where a parent cannot be contacted, the child can be treated without consent, but only where treatment is immediately necessary.

Where consent cannot be obtained from an adult patient

In Scotland the Adults with Incapacity (Scotland) Act 2000 provides that competent individuals over 16 can appoint someone to make decisions about medical treatment on their behalf if they become unable to do so. However in English law no-one can consent to medical treatment on behalf of an incompetent adult patient (and relatives cannot demand treatment they consider is in the best interests of the patient).  However sees the section on the Mental Capacity Act (2005) which will come into force in 2007. This will provde statutory legislation to govern the treatment of adults who lack capacity.

There are two categories of situation where decisions about medical treatment need to be taken for incompetent patients:

• When a patient is temporarily incompetent, e.g. if he/she is unconscious following an accident or acute medical event.
• When a patient is unlikely ever to be able to make a competent decision about treatment, e.g. severe dementia or learning disability or persistent vegetative state.

In the first situation the healthcare professional should do no more than is necessary in the circumstances. This does NOT justify treatment that is against the known wishes of the patient.

When Consent may not be needed - s63 Mental Health Act 1983

A patient who has been sectioned under the Mental Health Act may be treated without the requirement for consent. This is only applicable for treatment for the mental illness. http://www.doh.gov.uk/mentalhealth/

Refusal Of Treatment

Adults

A competent adult (passes the Re C test) may refuse treatment even if his/her life depends on it. The right to refuse treatment also applies to a pregnant woman (who is competent under the Re C test) even though the exercise of the right to refuse treatment may result in the death of her unborn child.

The English courts protect strenuously the right to be self-endangeringly eccentric, as these extracts from judgements illustrate:

"The patient is entitled to reject [the] advice for reasons which are rational, or irrational, or for no reason." Per Lord Templeman in Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 AC 171

"It is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even....though they do not consider it to be in his best interests to do so...." Per Lord Goff in Airedale NHS Trust v Bland [1993] AC 789.

The Mental Capacity Act (2005) wil provide statutory legislation governing the treatment of adults who lack capacity. This will come into force in October 2007. See section on Mental Capacity Act.

Children

A child who is competent can consent to treatment. However, a refusal of treatment may be overridden by a parent or the Court where such a refusal would be likely to result in the death or permanent disability of the child. Then the wishes of the child may be overridden to preserve his or her long-term interests.

Advance Statements

Advance statements about future medical treatment can be made by those who understand the implications of their choices in order to anticipate situations where they may lose mental capacity.

See End of life section and Mental Capacity Act section.