Warning

Introduction

Legally, adults have the right to make decisions which affect their own lives. The general rule is that adults are deemed to have capacity to consent unless there is evidence to the contrary. A person who has capacity can refuse consent to treatment for a good reason, an irrational reason, or no reason at all. Mental disorder may impair capacity to consent to treatment, although the presumption would still be in favour of capacity.

More information on how to assess capacity and The Adults with Incapacity Act can be found here

Consent to Treatment

The nature of consent will depend on the intervention. Some interventions may only need implied consent (e.g. rolling up a sleeve to allow blood pressure to be checked), with verbal consent being appropriate for many forms of treatment. Invasive or complex procedures (e.g. surgical interventions) usually require written consent. It is important to document consent and the way in which it was obtained.

Valid consent must be:

  • Given freely
  • Given by someone who is capable of consenting (has capacity)
  • Specific to the intervention proposed
  • Informed (the patient must have sufficient information about the proposed treatment and time to consider)
  • Enduring (for treatment which takes place over a period of time)

There is more information on Decision Making and Consent in the GMC guidance linked to in Resources, below. 

Treatment without consent

Medical treatment is sometimes necessary in the absence of consent.

  1. Treatment can be given under the Adults with Incapacity (Scotland) Act 2000
  2. Treatment can be given under the Mental Health (Care and Treatment) (Scotland) 2003 Act

A person subject to Compulsory Treatment under the Mental Health Act can be given treatment for their mental health without consent if they lack the capacity to consent or refuse to consent.

There are safeguards in place for treatment given under The Act. Drug treatment can be given for the first two months. Drug treatment for more than 2 months, medication to reduce sex drive or artificial nutrition have further safeguards. More information on the requirements for other specific treatments (e.g. ECT / deep brain stimulation) is available on the Mental Welfare Commission website.

Under Part 16 of the Mental Health Act, urgent treatment may be given when a patient does not consent or is incapable of consenting and the purpose of the treatment is to:

  1. Save the patient’s life
  2. Prevent serious deterioration in the patient’s condition
  3. Alleviate serious suffering on the part of the patient
  4. Prevent the patient from behaving violently or being a danger to themselves or others

It is important to continue to review patients’ ability to consent on a regular basis.

Decisions to provide treatment without consent should be discussed with a senior colleague.

Last reviewed: 21/02/2024

Next review date: 21/08/2024

Author(s): Higher Trainee in Psychiatry, NHS Lothian & Medical Education Fellow, NHS Lothian.

Author email(s): mypsych@ggc.scot.nhs.uk.

Reviewer name(s): Medical Education Fellow, NHS Lothian.