Policies and Guidelines
Department of Health
The Department of Health’s ‘reference guide’ provides a useful basis from which to navigate through various sources of guidance on consent. It discusses the three criteria for legally valid consent (that it must be a voluntary decision made by a person who has mental capacity to make the particular decision on the basis of appropriate information).
The ‘reference guide’ deals with a wide range of circumstances in which consent is required, in what form and for what duration it remains valid. It also discusses circumstances in which consent is withheld or withdrawn. Healthcare professionals’ responsibilities in respect of children and young people and adults without capacity are also explained.
The Mental Capacity Act 2005 (England and Wales) established statutory provision for people who lack capacity to make a particular decision and for those who have capacity but wish to plan for the future when they may lack mental capacity to make decisions for themselves. The requirements of the Act are comprehensively and accessibly explained in the Mental Capacity Act Code of Practice.
This thorough and easy-to-read guidance explains the obligations, under the Act, of everyone (including healthcare professionals) who looks after or cares for people who lack the mental capacity to make particular decisions. It explains how to ensure that people are supported to make decisions and it sets out a clear test to assess whether a person lacks capacity to make a particular decision.
The Code explains what rights and responsibilities others may have to make decisions in the best interests of a person, and what the Act requires of people making a judgement about another person’s best interests. Among other things, it also explains the procedures that people must follow if they wish to make an advance decision to refuse treatment or if they wish to appoint another person to make decisions on their behalf.
General Medical Council
In ‘Consent: patients and doctors making decisions together’ published in 2008, the GMC, ‘… provides a framework for good practice that covers the various situations that doctors may face in the course of their work.’ It concentrates on decisions about investigations or treatment but it is also relevant to other contexts such as research and decisions at the end of life. A legal annex provides useful information on relevant statutes and common law, with information specific to England & Wales, Northern Ireland and Scotland. A list of other sources of information is also helpfully provided.
The GMC’s specific guidance on consent and decision-making in the care of children and young people can be found in its 2007 publication, ‘0-18 years: guidance for all doctors’.
Further detailed guidance on decision-making and consent is provided in the context of end-of-life care in the GMC’s 2010 publication, ‘Treatment and care towards the end of life: good practice in decision-making’.
Note that the GMC provides Welsh language versions of each of these documents.
British Medical Association
The BMA’s guidance on consent is provided in the form of a ‘Consent tool kit’ consisting of 13 cards covering specific areas of consent relating, for example, to children, research, consent for teaching purposes and emergency treatment. The BMA explains that these cards are not intended to be comprehensive and definitive and it therefore directs readers to other sources such as the GMC and medical defence bodies.
Information relating to consent can also be found in BMA guidance dealing specifically with:
The Mental Health (Care and Treatment) (Scotland) Act 2003:
The New Mental Health Act: A guide to consent to treatment - Information for Service Users and their Carers
In addition to the above guidance, a judgment of the Supreme Court of the United Kingdom on 11th March 2015 constitutes an important development in the law on consent, with regard to determining what risks should be disclosed to the patient when seeking consent to examination or treatment . The judgment in Montgomery (Appellant) v Lanarkshire Health Board (Respondent)  UKSC 11 On appeal from  CSIH 3 (See also UKSC Press Summary) encapsulates the trend in the past thirty years away from reliance on what a responsible body of medical opinion would recommend disclosing (the ‘Bolam test’) in favour of what a reasonable person in the patient’s position would wish to know, taking account of the requirements of the particular patient.
“The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, 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.” Montgomery (Appellant) v Lanarkshire Health Board (Respondent)  UKSC 11 On appeal from  CSIH 3, 87
Page created: March 16, 2011