Consent

Background

Consent must be obtained for medical examination, treatment, service or investigation. This is well established in Irish case law and ethical standards.

Therefore, other than in exceptional circumstances, treating patients without their consent is a violation of their legal and constitutional rights and may result in civil or criminal proceedings being taken by the patient.

No other person such as a family member, friend or carer and no organisation can give or refuse consent to a patient or social care service user on behalf of an adult who lacks capacity to consent unless they have specific legal authority to do so.

Age of consent

The Non-Fatal Offences against the Persons Act, 1997 states that persons over the age of 16 years can give consent for surgical, medical and dental procedures
The Child Care Act 1991, the Children Act 2001 and the Mental Health Act 2001 define a “child” as a service user under the age of 18 years, “other than a service user who is or who has been married”

Valid

For the consent to be valid, the patient must:

have received sufficient information in a comprehensible manner about the nature, purpose, benefits and risks of an intervention/service or research project
not be acting under duress; and
have the capacity to make the particular decision

Constituent elements of a valid consent are:

Decision-making capacity
Disclosure of information
Comprehension
Voluntariness
Agreement

Information, appropriate to the individual patient's needs and understanding (e.g. interpreter), should include the reason for an intervention/ invasive investigation, the diagnosis and relevant uncertainties and the options to treat (including not to treat), including potential benefits and risks of a positive/negative outcome.

With any significant intervention in EM please use “supported decision-making” where possible.

Capacity

You must assume every adult patient has the capacity to make decisions about their care, and to decide whether to agree to, or refuse, an examination, investigation or treatment. It must not be assumed that a service user lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including intellectual disability, mental illness, dementia or scores on tests of cognitive function), their beliefs, their apparent inability to communicate, or the fact that they make a decision that seems unwise to the health and social care professional. Capacity should not be confused with your assessment of the reasonableness of the patient's decision.

Consider incapacity

The possibility of incapacity and the need to assess capacity formally should only be considered, if, having been given all appropriate help and support, a service user:

is unable to communicate a clear and consistent choice
or
is obviously unable to understand and use the information and choices provided

In making decisions for those who lack capacity, the clinician should determine what is in their best interests, which is decided by reference to their values and preferences if known.

"Family"

No other person such as a family member, friend or carer and no organisation can give or refuse consent to a health or social care service on behalf of an adult service user who lacks capacity to consent unless they have specific legal authority to do so.

However, it may be helpful to include those who have a close, ongoing, personal relationship with the service user.

Their role in such situations is not to make the final decision, but rather to provide greater insight into his/her previously expressed views and preferences and to outline what they believe the individual would have wanted.

Emergency situations involving patients who lack capacity

Consent is not necessary. You may treat the the patient if you believe the intervention is immediately necessary to save their life or to prevent a serious deterioration of their condition and that there is no valid advance refusal of treatment.

Consent forms CUH

Patient in CUH should be informed about relevant procedures and the relevant:

Consent to treatment