Having been tasked with drafting a single national policy on consent for healthcare and social care, the National Consent Advisory Group (NCAG) has now published a draft policy. Rebecca Ryan looks at the key aspects of the NCAG’s proposals.
The National Consent Advisory Group is tasked with drafting a single national policy and supporting documentation on consent for healthcare and social care. In May, the NCAG published a draft policy for consultation and the key and novel provisions are summarised below. It is beyond the scope of this article to summarise every aspect of the draft policy, which can be accessed here.
The general principles of valid and genuine consent by adults.
The draft policy recognises that no other person can give or refuse consent on behalf of a capable adult patient, and reaffirms the presumption that all adult patients have capacity and should not be challenged without adequate reason. In relation to family members, although acknowledging their role in supporting an adult during the decision making processes, the draft policy also confirms that a voluntary decision by a capable adult to refuse treatment must be respected, even where this will likely lead to death.
The draft policy sets out the type of information which must be provided to patients, to obtain valid, informed consent. It acknowledges that a patient must be given all information that a reasonable patient would expect in the situation, and advises healthcare professionals to be cognisant of potential biases in how risks are expressed and to give information in a balanced manner.
The draft policy also notes that the professional providing the healthcare or social care service is responsible for ensuring that the patient/service user is adequately consented. The task of consenting the patient or service user may be delegated to another suitably trained and qualified colleague who has sufficient knowledge of the proposed intervention and associated risks/benefits.
Issues arising in relation to children and minors
The draft policy proposes that, in general, consent by one parent/guardian will be sufficient for healthcare or social intervention regarding a child. However, consent from both parents / guardians should be sought in respect of an intervention which may have profound and irreversible consequences.
The draft policy therefore proposes that when a minor under 18 refuses life saving treatment, an application should be brought before the High Court to adjudicate on the refusal.
In relation to minors, the draft policy advocates that if a minor under 16 seeks a healthcare or social service, best practice requires the relevant professional to encourage the minor to consult their parents/ guardians. Healthcare and social interventions will only be provided to minors under 16 without the knowledge or consent of their parent/guardians in exceptional circumstances and following an assessment, which broadly mirrors the Gillick analysis applicable under UK law.
The assessment requires consideration of the minor’s maturity and ability to understand the relevant information and potential consequences, whether their views are stable and consistent, the nature of the proposed intervention, the associated risks and benefits and any public policy factors.
The draft policy notes that section 23 of the Non Fatal Offences against the Person Act 1997, which allows minors between 16 and 18 to consent to treatment, does not contain an express entitlement to refuse treatment. The draft policy therefore proposes that when a minor under 18 refuses life saving treatment, an application should be brought before the High Court to adjudicate on the refusal.
As a principle, the draft policy acknowledges that parents/guardians are presumed to act in their children’s best interests, even if the parent is under 16 years of age. If a parental decision is thought to conflict with the child’s best interests, the healthcare or social care professional should engage in dialogue to explore the decision further and it be may be necessary to seek legal advice.
Consent in relation to research
The NCAG has noted that “participation in research is an altruistic act which rarely benefits the individual directly”, and said that, consequently, the standards for safeguarding research participants are set particularly high. In this context, the draft policy sets out guidance for obtaining valid informed consent for research and addresses dealing with vulnerable research participants, before discussing specific issues which may arise in specialised areas of research e.g. genetic and epidemiological research.
If a healthcare or social care professional is in any doubt as to the appropriate course of action, they should consult with their supervisors and it may be necessary to take legal advice.
Issues regarding CPR and Do Not Resuscitate (DNR) Orders
The draft policy notes the need for national guidelines in this area and sets out guidance emphasising the necessity for clear, open and sensitive communication and assessment of a patient’s capacity. It also sets out the scenarios in which it is appropriate to consider CPR and DNR choices and summarises the relevant principles which should apply.
Producing a policy which addresses all aspects of consent in the healthcare and social care settings is a considerable and valuable undertaking. The NCAG recognises the need to ensure that the policy is consistent with best ethical practice and legal considerations, as well as being clear and workable to assist frontline healthcare and social care professionals in dealing with challenges which arise daily.
In this context, it will be interesting to assess how the final policy (to be published in September) will differ from the draft policy documents, and whether the consultation process results in significant alternations. This consultation closed at the end of June.
At a broader level, however, clarification regarding the treatment of under 16s, the refusal of treatment by under 18s and the position of minor parents can be seen as most welcome.
However, no guidelines can comprehensively address all the complex, nuanced situations which may arise in daily practice. If a healthcare or social care professional is in any doubt as to the appropriate course of action, they should consult with their supervisors and it may be necessary to take legal advice.
Rebecca Ryan is a Senior Associate in the Healthcare Group in Matheson Ormsby Prentice. She can be contacted at firstname.lastname@example.org or at + 353 1 232 2460.