Consent

Valid consent consists of three elements:

• It is given by a competent person, who may be a person lawfully appointed on behalf of the client
• It is given voluntarily
• It is informed.

The NMC states that consent to treatment can be given in three ways:

• Implied consent — such as when a patient rolls up his/her sleeve for an injection to be administered
• Oral consent — for example, when a patient agrees verbally to have a dressing applied
• Written consent — such as when a patient signs a consent form for an operation.

In the eyes of the law all these forms of consent are valid.

Consent for children

With regard to obtaining consent for a child, it is usually necessary to involve those with parental responsibility - however, this will depend on the age and understanding of the child - The NMC code of professional conduct: standards for conduct, performance and ethics (2004).

In Scotland, The Children (Scotland) Act 1995 defines parental rights and responsibilities, www.scotland.gov.uk/library/documents4/sc-ch-02.htm

Rights are what parents are allowed to do and responsibilities are what parents are expected to do.

Of the four responsibilities stated in the act, the first is 'to safeguard and promote the child's health, development and welfare until the child reaches the age of 16'.
The fourth is to act as legal representative until the child is 16.
The act provides that 'acting as legal representative' is a reference to consenting, in the best interests of the child, to any transaction where the child is incapable of consenting on his/her own behalf.
The position appears to be that any decision regarding medical treatment will be governed by the Age of Legal Capacity (Scotland) Act 1991 — Section 2 (4).

	Reading Griffith, R. (2005) A nurse prescriber's guide to the legal implications of parental responsibility. Nurse Prescribing. 3 (3) 121-124.
	You need to familiarise yourself with the legal rights and responsibilities for unmarried parents, particularly fathers and same-sex couples. Consider how you would tackle an issue of consent for children under such family circumstances.

The Age of Legal Capacity (Scotland) Act 1991 states that children and young people have the capacity to consent to their own medical treatment where, in the opinion of the qualified medical practitioner attending, the child/young person is capable of understanding the nature and consequences of treatment. This means that parental consent to treatment will not be relevant unless it is deemed that the child is unable to understand what is happening.

If the child is capable of understanding, and refuses treatment, their choice should be respected. Where parents/doctors believe that the best interest of the child requires treatment to proceed, the court will need to decide the issue, using provision under the Age of Legal Capacity (Scotland) Act 1991.

Follow the following web links for more information on children's rights:

Children's Rights Alliance for England, www.crae.org.uk

The case of Gillick versus West Norfolk and Wisbeck Area Health Authority and the DHSS (1985) provides guidance in common law on what has become known as 'Gillick competence', where a child under the age of consent may give valid consent to treatment that is in his or her best interest without the involvement of parents.

A prescriber can deem a minor to be 'Gillick competent' and, providing that the Fraser Guidelines are satisfied, can consequently provide contraceptive advice/treatment without informing the parents. This requires that the minor:

• Fully understands the medical advice
• Cannot be persuaded to tell their parents
• Is likely to have sexual intercourse without the contraceptive advice/treatment.

Other requirements are that:

• The minor's physical or mental health will be at risk if he/she does not have the contraceptive advice/treatment
• Their best interests deem the contraceptive advice/treatment to be necessary.

The Fraser Guidelines can be accessed by following the link below:
www.brook.org.uk/content/M5_3_consenttreatment.asp

The Fraser Guidelines and the issue of 'Gillick competence' are also set out on page 5 in the Medical Protection Society document, Consent: A complete guide for consultants:
www.medicalprotection.org/assets/pdf/booklets/consent_consultants_complete.pdf

	Consider the issue of prescribing a contraceptive to a female child who is under 16 years of age. It must be presumed that the contraceptive is required because she is sexually active. Because the girl is under 16 years of age, an offence is being committed against her, no matter who her sexual partner is.
	Make notes on the following: In what circumstances could this become a child protection issue? To whom would you report the situation if you suspected that the child was vulnerable? Would you have to have the child's permission to make this report?
	Consider these questions within the context of the law, accountability, responsibility and confidentiality.
	Discuss the issues involved in this situation with your clinical supervisor.
	Further reading Pocock, M. (2003) A critical analysis of legal and ethical issues regarding consent in childhood. Nurse Prescribing 1: 4, 180-185.

The consent for people who are mentally incapacitated

The reasons for mental incapacitation may be short or long term. Short-term reasons include treatment with certain sedative medicines and longer-term reasons could include learning disability, mental illness or coma.

The following material will help you to understand the legislation regarding issues of consent and medication for patients with mental incapacitation. It is important that you familiarise yourself with the suggested sections.

The Mental Health Act 1983 is the current mental health legislation in England. The act was reviewed in 1999 (Department of Health, 1999) but the new legislation following this review has not yet been published. It is expected there will be new legislation towards the end of 2005. The following link gives a good guide to the Mental Health Act 1983, which must be used meantime. www.hyperguide.co.uk/mha/

Mental Health (Care and Treatment) (Scotland) Act 2003 is the current mental health legislation that applies in Scotland. http://www.opsi.gov.uk/legislation/scotland/acts2003/20030013.htm The Adults with Incapacity (Scotland) Act 2000 provides information about the code of practice for persons authorised to carry out treatment in Scotland. Section 2 should be read in conjunction with the Mental Health (Care and Treatment) (Scotland) Act 2003 (see above). Remember that this act applies in Scotland only — the rest of the UK has to rely on common-law judgements.

Notes on the current acts are available from libraries.

Guidance may also be found in:

Department of Health (2001) Good Practice in Consent Implementation Guide: Consent to examination and treatment. London: DH.
This is available online at:
www.dh.gov.uk/assetRoot/04/01/90/61/04019061.pdf

Once you have read this, click to view NMC guidance on consent in section 3 of The NMC code of professional conduct: standards for conduct, performance and ethics (2004).

Think of situations in your work experience where prescribing has been carried out but where issues of consent and professional responsibility have not been in concordance. On reflection, what could you have done to address this?

Consent in an emergency

In emergencies, where treatment is necessary to preserve life, you may — even if the patient or client is unable to give consent — provide care, provided you can demonstrate that you are acting in their best interests — NMC Code of Professional Conduct (2002).

Remember:

• Patients have the right to refuse to give consent
• No one has the right to give consent on behalf of another competent adult
• You should always document any discussions and decisions around obtaining consent in the patient's records.

Reading Gagan, Mark Legal aspects of independent and Supplementary prescribing in Courtenay, M. and Griffiths, M. (Eds) (2004) Independent and Supplementary Prescribing: An Essential Guide. London: Greenwich Medical Media. Chapter 4, 41-44

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