Mental Capacity Act

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The NMC (2008) state nurses must ensure they gain a patient's consent before giving any treatment or care. This essay will explore the legal and ethical dilemmas associated with consent within current nursing practice. The RCN (2008) defines consent as: 'an ongoing agreement by a person to receive treatment, undergo procedures or participate in research, after risks, benefits and alternatives have been adequately explained to them'. Since nurses were first regulated in 1916, the continual introduction of new legislation, medical developments and people's expectations have influenced the way in which they practice (Whitcher 2008). In compliance with the NMC Code of Conduct (2008) nurses must act in the best interests of patients ensuring their actions or omissions do not harm patients, known as non-maleficence and do good for patients wherever possible, known as beneficence (Hinchcliffe, Norman and Schober 2003). There is no single act of parliament which relates to consent; in response to previous case law, common law sets a precedence to be followed in future cases. English Law assumes unless it is proved otherwise everyone over the age of 18 has the capacity to make their own decision about whether to consent to or refuse treatment (Dimond 2005). If a nurse treats a patient without first gaining consent, in common law they may be accused of a civil or criminal offence of battery (Whitcher 2008). Consent is usually described as implied or informed. This can be verbal, which is usual in most cases for nursing activities or written for more complex procedures, such as surgery (Dimond 2005). A patient could imply that they consent to treatment by holding up their arm for a blood pressure test. However, the nurse should still inform the patient what they are doing, check their understanding and ask for consent (Spouse, Cook and Cox 2008). For a more complex procedure the patient will need appropriate information in order to make an informed decision (Spouse et al 2008) which should include; any benefits, alternatives available, risks involved and what may happen if consent is not given (DOH 2001). In the case of Chatterton V Gerson (1981) the risks were not communicated to the patient who received a pain controlling injection which left her with a numb leg. It was established that if she had been informed of the risks involved she would not have given consent (Whitcher 2008). Nurses should ensure details are accurately recorded to demonstrate compliance with legal requirements and that the patients' wishes have been met (NMC 2008).


When making a decision to give or refuse consent patients have the right to autonomy and should not be under the influence of another individual (Whitcher 2008). Not only is it good practice to respect this right but is also a legal requirement and nurses should support patients' decisions and tailor care and treatment accordingly, treating patients with equality and fairness even if the patient's values and views are different to their own (DOH 2001). Legally this term is known as 'justice'. The practice of paternalism by health professionals is no longer acceptable; voluntary consent must be given (DoH 2001a), therefore nurses should ensure patients have freedom of choice and not be under any duress or under influence from anyone else. The Mental Capacity Act (MCA 2005) aims to protect patients who do not have the capacity to give informed consent. For example if a patient is incapable of making a decision, maybe unable to communicate after a severe stroke or has head injuries as a result of a traffic accident, treatment can go ahead in the best interest of the patient (Whitcher 2008). This Act also allows people to make their intentions known in advance by having a living will, which can state their wishes or give power of attorney to another person to make decisions on their behalf if they lose the capacity to consent, perhaps because they are confused as a result of dementia (Mind). People with mental health disorders have the same rights to consent as those with physical illnesses unless some mental health issue means they are unable to make a decision (Mind). A small number of people with mental health problems may need to be detained under the Mental Health Act (1983). In practice, nurses will come across difficult situations where an assessment of the capacity and ability of a person to consent will be required (Schoder et al). For example it should not be assumed people with learning difficulties do not have the capacity to consent (DOH 2001). Every effort should be made to provide information in a format the patient can understand. Brittle 2004 suggests the use of pictures, alternative communication methods, using short sentences, repeating explanations and giving them time to make a decision. Although in English law no-one can give consent for another adult, (Dimond 2005) involving family, friends or an advocate, where possible may help them understand the care and treatment offered to enable them to make their own decision (DOH 2001). In some situations people with learning difficulties may have the capacity to consent to straightforward nursing activities but may lack capacity to consent to more complex procedures (DOH 2001). Likewise it is important that nurses do not assume because a patient has a physical disability he or she is unable to consent to or refuse treatment (Dimond 2005).


Consent for young children is usually given by the family. However The Children's 1989 Act clearly states nurses should encourage children to participate in decisions about their care and treatment from an early age. Information should be given in a format which is appropriate for their age and development (Schoder et al). A child can give valid consent without parental consent or even informing the parents of what is taking place if they have sufficient understanding and intelligence to be able to make up their own mind (Dimond 2005). This is known as 'Gillick' competence, following a court case where Mrs Gillick challenged the legality of her daughter being offered the contraceptive pill without her knowledge (Spouse et al 2008). Although children do not have to involve parents the DOH (2001) suggests it is still good practice to include family in decisions unless the child specifically requests their parents are not informed. However if a child refuses to give consent, their parents may give consent against the child's wishes, if the benefits outweigh the risks, for instance if a child suffering with cancer refuses chemotherapy (Chambers & Licence 2003). Under the Family Law Reform Act 1969 children aged 16 and 17 have the same rights to consent as an adult and the Mental Health Act (2007) recommends they also have the right to refuse consent. Consent is a complex issue and has many legal and ethical facets which nurses need to be aware of. Consent should be gained voluntary and in the appropriate form wherever possible, but there will always be situations where people are unable to give consent, giving rise to ethical and legal dilemmas. If nurses fail to comply with the law, or follow guidance given in the relevant Acts and the NMC Code of Conduct (2008) they will be putting both the patient and themselves at risk.