BMA Confidentiality and health records

Consent

1. Consent is required for any examination, treatment or intervention involving an adult who has the capacity to give it, except where
   Emergencies where it Is not possible to obtain consent
   Compulsory treatment for the patient’s psychiatric disorder is authorised under mental health legislation.

2. Consent is required to involve patients or volunteers in teaching or research.

3. In order for consent to be valid
   the patient must have capacity,
   have been offered relevant information,
   be acting voluntarily and
   be aware that they can refuse.

4. Family members cannot give consent on behalf of an adult who has capacity.
   Where the patient has appointed a family member as a health and welfare attorney to make decisions on their behalf this only comes into force when the patient loses capacity.

5. Consent may be explicit (orally or written) or implied and, except in limited circumstances, need not be in writing.

6. Consent is a continuing process, rather than a one-off decision and patients can change their mind about treatment at any time.

7. Competent adult patients are entitled to refuse treatment even if that will result in their death or serious harm.
   The only exception to this is where the law prescribes otherwise, such as when compulsory treatment for the patient’s psychiatric disorder is authorised by mental health legislation.

8. Patients cannot demand treatment that is not clinically appropriate.

Capacity to consent

1. People over 16 are presumed to have the capacity to consent to treatment unless there is evidence to the contrary.

2. To have capacity to consent an individual must
   understand, in simple language, what treatment is being proposed
   weigh up the benefits, risks, alternatives of the treatment
   retain the information for long enough to make a decision
   communicate the decision by any means.

3. In England and Wales (under the terms of the Mental Capacity Act), a person lacks capacity if their inability to do these things is caused by ‘an impairment or disturbance in the functioning of the mind or brain’.

4. If a patient lacks capacity to consent, treatment decisions must be made following the process set out in the Mental Capacity Act 2005 (England and Wales), Adults with Incapacity (Scotland) Act 2000 or the common law (Northern Ireland).

Sharing information with patients

1. Patients require sufficient clear and accurate information, in a way they can understand, before providing consent.

2. Information should be tailored according to the nature, complexity and level of risk of the proposed treatment, and the individual concerns, wishes and values of each patient. For example, if the proposed treatment carries a potential risk of harm that you believe the patient would consider to be serious in their circumstances, you must tell the patient, even if you think it is very unlikely to occur. You should also tell patients about less serious side effects or complications if they occur frequently, or if you think the patient may attach particular significance to them.

   In March 2015, the UK Supreme Court (Montgomery v Lanarkshire Health Board) clarified that doctors must “take reasonable care to ensure that the patient is aware of any material risks involved in any treatment, and of any reasonable alternative or variant treatments”.
   A ‘material risk’ is one in which “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.

   Doctors can no longer rely on the support of a responsible body of medical opinion (‘the Bolam test’) in deciding what information they should provide to patients. Instead, they must provide information about any risk to which the individual patient would attach significance.

3. It is important to listen to the patient as well as providing information.

4. Information should not be withheld at the request of others, such as family members.

5. An individual’s refusal to receive information should be respected although some basic information may need to be provided in order for the patient’s consent to be valid.

Who is responsible for seeking consent?

1. Clinical, legal and professional responsibility for ensuring that valid consent has been obtained rests with the person carrying out the procedure.

2. Providing information and seeking consent may be delegated to a colleague, provided that person has the necessary knowledge, skills and experience.

3. If you are asked to seek consent and do not feel competent to do so, you should inform the person who will be carrying out the procedure and ask for support; you should not seek consent if that support is not provided.

4. If you are informed by the individual tasked with seeking consent that they do not feel competent to do so, you must ensure that support is provided or make alternative arrangements.

Refusal of consent in adults aged 18 and above

1. Competent adult patients (those over the age of 18) can refuse to consent to any treatment and such refusals must be respected.
   For example, a Jehovah’s Witness can refuse a blood transfusion even where this is essential for survival.

   The situation is different for patients under the age of 18.

2. Compulsory treatment of patient’s psychiatric disorder, authorised by mental health legislation overrules patient’s refusal to treatment.

3. Competent adult patients can refuse food and fluids – whether provided orally or by tube (clinically-assisted).

4. An advance decision refusing food and fluids orally will not be legally binding, as this is considered ‘ a basic care’.
   An advance decision refusing clinically-assisted nutrition and hydration is legally binding once a patient loses capacity.

5. Oral feeding should continue to be offered to, but not forced upon, all patients who are capable of swallowing safely

6. Patients are not required to justify their decisions but doctors must ensure they have based their decision on accurate information and correct any misunderstandings.

Advance Care Planning (advance decision to refuse treatment ADRT)

1. Patients who have capacity should be encouraged to think about what they would want to happen in the future if they are unable to express their views about treatment.

2. Request treatment in advance
   Advance requests for treatment are NOT legally binding but will be taken into account, once capacity is lost, as part of the best interests assessment.

3. Refuse treatment in advance ADRT (‘living will’)
   Valid and applicable advance decisions refusing treatment are legally binding in England and Wales and are likely to be binding in Scotland and Northern Ireland.
   Where a patient lacks capacity to make decisions and has an ADRT that is valid and applicable to the circumstances that have arisen, it will be legally binding on the doctors treating the patient.

4. Patients who wish to plan for a future loss of capacity can formally appoint someone as an attorney with the power to make health and care decisions on their behalf.

When are ADRTs legally binding?

In England and Wales, advance decisions to refuse treatment are covered by the Mental Capacity Act.

An ADRT will be legally binding if:

1. It was made by someone aged 18 or older who had capacity to make the decision at the time it was written

2. It clearly applies to the treatment to be refused in the circumstances that have arisen

3. It has not been withdrawn

4. The individual has not, after the ADRT was made, appointed a health and welfare attorney to make the specific decision

5. The person making the decision has not done anything clearly inconsistent with the decision remaining a fixed decision.

6. If the advance decision is to refuse life-sustaining treatment, it must meet the additional following criteria:

   It must be made in writing, signed and witnessed
   Must include a statement that it is to apply even where life is at risk.

An alternative to ADRT is to appoint a Lasting Power of Attorney LPA

Another option for patients who wish to plan for a future loss of capacity is to formally appoint someone as an attorney with the power to make health and care decisions on their behalf (in England and Wales these are called lasting powers of attorney or LPAs).

A LPA is registered with the Office of the Public Guardian (OPG).
Currently it costs £164 to register both a property and financial affairs LPA and a health and welfare LPA.

Consent for emergency treatment

1. In an emergency situation, if the patient has capacity, consent must be obtained before treatment is provided.

2. Where it is not possible to obtain consent, doctors should provide treatment that is in the patient’s best interests and is immediately necessary to save life or avoid significant deterioration to the patient’s health.

3. If the patient is an adult, and there is clear evidence of a valid and applicable advance refusal of a particular treatment, that treatment should not be given (for example, a refusal of a blood transfusion by a Jehovah’s Witness).

4. If the patient has appointed a welfare attorney, or there is a court appointed deputy or guardian, this person must be consulted about treatment decisions, where time permits.

Compulsory treatment under mental health legislation

1. Treatment for a mental disorder can be provided compulsorily and without consent if it is authorised under mental health legislation.
   This includes treatment for physical conditions arising directly from a psychiatric condition such as forced renutrition in patients with anorexia nervosa or treating wounds self-inflicted as the result of a mental disorder. However, it is still good practice to seek their agreement.

2. Mental health legislation cannot impose on patients treatment for physical ailments not arising from a mental disorder.

3. Advance decisions refusing treatment for a mental disorder can be overruled if the individual is being treated compulsorily under mental health legislation.

Consent for research

1. Consent is required for competent adults to participate in research.

2. Information should preferably be provided to the patient (research participant) in writing and should be approved in advance by a research ethics committee.

3. Human tissue for research
   Under the Human Tissue Act 2004 if the samples are anonymised and the research has been approved by a research ethics committee, consent is not required.

4. Consent is required in England, Wales and Northern Ireland for the use of tissue from living individuals for research unless the tissue samples are anonymised and the research has been approved by a research ethics committee.

Consent for teaching purposes

1. Consent should be sought for medical students or other observers to be present during a consultation or treatment.

2. Specific consent must be obtained to carry out any practical procedures on patients whilst they are anaesthetised, for training purposes.

3. Doctors must obtain consent from the patient prior to a recording being made and for its subsequent use for teaching purposes.

4. Consent is not required for the storage and use of material from living individuals for teaching purposes provided it is anonymised.
   The use of identifiable samples for teaching requires consent.