The College of Optometrists

Consent

Previous section Next section

Sub-sections

Key points

  • You must respect the rights of patients to be fully involved in decisions about their care.
  • You must obtain consent from patients who have capacity before starting treatment.
  • Making decisions about treatment for patients who lack capacity is governed in England and Wales by the Mental Capacity Act 2005, in Scotland by the Adults with Incapacity (Scotland) Act 2000 and in Northern Ireland by the Mental Capacity Act 2016 (not yet in force).
  • Patients over the age of 16 are presumed to have capacity to consent.
  • You should involve children and young people (aged 16-17) in discussions about their treatment.
  • The legal framework for treating children and young people who lack the capacity to consent differs across the UK.
  • You should encourage children and young people to involve their parents in decision-making.

Gaining consent to treatment from adults

C23
You must respect the rights of patients to be fully involved in decisions about their care.195
C24
If the patient has the capacity to consent, you must obtain their consent before a physical examination, starting treatment or helping them with their eye care, for example putting in drops or contact lenses.196, 197, 198, 199
C25
Patients can give consent orally or in writing, or may imply consent by their behaviour, such as resting their chin on the chin rest after you have explained the procedure. However, acquiescence when the patient does not know what the examination or treatment entails is not consent.
C26
You should use your professional judgement to decide what type of consent is required.200 As most of the tests that are conducted during a routine eye examination are safe and non-invasive, implied consent would normally be sufficient for these. However, for more invasive tests, such as drop instillation, contact lens fitting or applanation tonometry you should obtain explicit consent from the patient.
C27
You should get written consent from a patient if:
  1. the investigation or treatment is complex or involves significant risks
  2. there may be significant consequences for the patient’s employment, or social or personal life
  3. providing clinical care is not the primary purpose of the investigation or treatment, or
  4. the treatment is part of a research programme or is an innovative treatment designed specifically for the patient’s benefit.
C28
You are responsible for ensuring the patient has given valid consent. You may delegate this to another person only if you are sure they:
  1. are suitably trained and qualified
  2. have sufficient knowledge of the proposed examination or treatment
  3. understand the risks involved, and
  4. are able to provide clear and accurate information in response to the patient's questions.
C29
If you delegate the task of seeking patient consent but carry out the subsequent examination or treatment you must be able to determine:
  1. whether the patient had the capacity to make the decision to proceed,201  and
  2. what steps to take if the patient lacked capacity to make that decision.
C30
In order for the consent to be valid, the patient must:
  1. have the capacity to consent
  2. be informed about the procedure, and
  3. understand the nature and purpose of the procedure.
C31
If you misrepresent the elements in paras C30 b or C30 c the patient’s consent will be invalid.
C32
You should provide information to the patient in a balanced way and explain your reasons for any particular course of action that you recommend.
C33
You must provide all relevant information to the patient; failure to do this may mean you have breached your duty of care and make you liable in negligence if the patient suffers harm as a result of the treatment. You should not withhold any information necessary for the patient to make a decision, unless the patient specifically asks not to have the information. You should then record this in the patient notes.
C34
You should find out what information the patient wants as well as telling them what you think they need to know. What patients might want to know includes:
  • the options available: risks and benefits
  • which option you feel is the most appropriate for them and why, and
  • the cost of various options
C35
If a carer or relative asks you to withhold information from the patient, you should not do so, unless you feel that giving the patient the information would cause serious harm. ‘Serious harm’ means more than the patient becoming upset or refusing treatment. If you withhold information from the patient you must record the reason in the patient notes.
C36
You should not put pressure on the patient to accept your recommendation.
C37
You should give patients with additional needs the time and support to make a decision.
C38
The patient may withhold their consent for any part of the consultation.
C39
It may constitute battery if you touch a patient without their consent.
C40
You should always seek legal advice if you have any doubt about the legal validity of the examination or treatment.
C41
Gaining consent from a patient is not a one-off event and is part of the ongoing liaison between you and the patient. You should be alert to unspoken signals which could indicate a patient’s lack of understanding, discomfort, or lack of consent.202 A patient who is capable of giving consent may withdraw it at any time, including during a procedure. If your patient does object during a procedure you should:
  1. stop the procedure, if possible
  2. find out the patient’s concerns
  3. establish if it is an expression of anxiety rather than withdrawal of consent
  4. give reassurance, and
  5. explain the consequences of not completing the procedure.
C42
An adult patient with the capacity to consent has the right to refuse any treatment, even if you feel that their decision is unwise or it would lead to them (but no one else) suffering serious harm. If you believe that there is a risk of serious harm to the patient or others due to their decision to refuse a treatment or service, such as referral, you must raise this issue with appropriate healthcare colleagues or people involved in the patient’s care.203 However, you must respect the patient’s confidence when you do this.204 This can be done by discussing the case in general without revealing details which may identify the patient. See section on Confidentiality.

Capacity to consent – adults

C43
To make a decision about care the patient should be able to:
  • understand and remember the information provided
  • weigh up the information provided, and
  • tell you their decision.
C44
A patient’s capacity may vary from one day to the next or depend on the decision they are being asked to make. You should not assume that just because the patient does not have capacity on one occasion, they lack the capacity to make all decisions.
C45
Making decisions about treatment and care for patients who lack capacity is governed in:
  1. England and Wales by the Mental Capacity Act 2005.201 The Act is supported by a Code of Practice for healthcare workers which you should refer to.205  A person lacks capacity if, at the time the decision needs to be made, they are unable to make or communicate the decision because of an ‘impairment or disturbance’ that affects the way their mind or brain works. Further information for those practising in England is available from the Department of Health.206
  2. Scotland by the Adults with Incapacity (Scotland) Act 2000.207 The Act is supported by Codes of Practice for healthcare professionals which you should refer to.208 A person lacks capacity if they cannot make decisions or communicate them, or understand or remember their decision, because of a mental disorder or a physical inability to communicate in any form.
  3. Northern Ireland by the Mental Capacity Act (Northern Ireland) 2016 (not yet in force).209 The Act will be supported by a Code of Practice for healthcare workers which you should refer to. A person lacks capacity if, at the time the decision needs to be made, they are unable to understand information, retain information, appreciate the relevance of the information or communicate their decision because of an impairment of, or a disturbance in, the function of the mind or brain. The timescales for implementing certain parts of the Act are as yet unclear, so you should seek legal advice if you have concerns about a person’s capacity to make decisions.
C46
No one can make a decision on behalf of an adult who has capacity. If a patient asks you, or a relative or carer, to make decisions for them you should explain:
  1. that it is still important that they understand the options, and
  2. what the treatment or investigation will involve.
C47
You must work on the presumption that every adult patient (over the age of 18) has the capacity to make decisions about their care, and to decide whether to agree to, or refuse, an examination, investigation or treatment.
C48
You must regard a patient as lacking capacity only once it is clear that, having been given all appropriate help and support, they cannot understand, retain, use or weigh up the information needed to make that decision, or communicate their wishes.
C49
You must not assume that a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, apparent inability to communicate, or the fact that they make a decision with which you disagree.
C50
A patient’s ability to make decisions may depend on the nature and severity of their condition, or the difficulty or complexity of the decision.
C51
You must assess the patient’s capacity to make an informed decision about the treatment and then assess if they are able to decide whether to have the treatment.
C52
If the patient does not have capacity, the Mental Capacity Act 2005 in England and Wales, and the Mental Capacity Act (Northern Ireland) 2016, enables the patient to authorise someone who is over 18 years of age to make decisions for them under a Lasting Power of Attorney (LPA). Alternatively, someone who has authority to make treatment decisions for that person, as a court appointed deputy, can give consent.210, 211 In Scotland the Adults with Incapacity (Scotland) Act 2000 enables someone to hold Power of Attorney (PoA). The phrase ‘next of kin’ has no legal definition or status, and such a person cannot give or withhold consent on behalf of the patient.
C53
There are two types of LPA. One that enables the attorney to make decisions regarding the patient’s property and one that enables the attorney to make decisions regarding the patient’s care or welfare. The care and welfare attorneys are called personal welfare LPAs in England and Wales, welfare PoAs in Scotland, and care, treatment and personal welfare LPAs in Northern Ireland. The attorney powers relating to the patient’s property are valid if the patient has capacity. However, the attorney powers relating to care or welfare only come into play if the patient lacks capacity, or the attorney reasonably believes the patient lacks capacity. If you are relying on someone who has an LPA or a PoA to give consent on behalf of your patient you should keep a copy of the LPA or PoA document.
C54
You must take account of the advice on assessing capacity in the Codes of Practice that accompany the Mental Capacity Act 2005, the Adults with Incapacity (Scotland) Act 2000, the Mental Capacity Act (Northern Ireland) 2016, and other relevant guidance. If your assessment is that the patient’s capacity is borderline, you must be able to show that it is more likely than not that they lack capacity.
C55
The decision or action taken on behalf of the patient who lacks capacity must be in their best interests.
C56
You should record in the patient notes your reasons for deciding that:
  1. the treatment is in the patient’s best interests, and
  2. the patient lacks capacity.
C57
You should offer patients who are likely to have difficulty retaining information a written record of your discussions and the decisions that were made.

References

201 Mental Capacity Act 2005.
205 Department for Constitutional Affairs (2007) Mental Capacity Act 2005, Code of Practice [Accessed 4 Nov 2017]
206 Department of Health (2009) Reference guide to consent for examination or treatment. 2nd ed [Accessed 4 Nov 2017]
207 Adults with Incapacity (Scotland) Act 2000.
208 The Scottish Government. Adults with Incapacity [Accessed 6 Nov 2017]
209 The Mental Capacity Act (Northern Ireland) 2016
210 Office of the Public Guardian Make a lasting power of attorney [Accessed 6 Oct 2017]
211 Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2007 SI 2161.

General points on consent – children and young people

C58
The legal position concerning consent and refusal of treatment by those under the age of 18 is different from the position for adults. For the purposes of this guidance ‘child’ refers to someone aged below 16 and ‘young person’ refers to someone aged 16–17. At 16 a young person is presumed to have capacity. Children and young people cannot make a Lasting Power of Attorney.
C59
You should involve children and young people as much as possible in discussions about their treatment, even if they are not able to make decisions on their own.212
C60
You may provide emergency treatment to a child or young person, or refer them, without their consent, to save their life, or prevent serious deterioration in their health or vision.

Children and young people who lack the capacity to consent

C61
Where a child does not have the capacity to consent, you must get consent from someone with parental responsibility. Consent from one parent, providing that parent has the capacity to consent, is usually sufficient, but if parents cannot agree and disputes cannot be resolved informally you should seek legal advice about whether to apply to the court.
C62
Not all parents have parental responsibility. If the parents were married at or after the child’s conception, both will have parental responsibility, even if they have later divorced. For unmarried parents, both will have parental responsibility if they are named on the child’s birth certificate and the child was born on or after:
  • 1 December 2003 in England and Wales
  • 15 April 2002 in Northern Ireland, and
  • 4 May 2006 in Scotland
C63
The legal framework for the treatment of young people who lack the capacity to consent differs across the UK. In:
  1. England, Wales and Northern Ireland, parents can consent to investigations and treatment that are in the young person’s interests
  2. England and Wales, treatment can also be provided in the young person’s best interests without parental consent, although the views of parents may be important in assessing the young person’s best interests
  3. Northern Ireland, treatment can be provided in the young person’s best interests if a parent cannot be contacted, although practitioners should seek legal advice about applying for court approval for significant (other than emergency) interventions
  4. Scotland, young people who do not have the capacity to consent are treated as adults who lack capacity, and treatment may be given to safeguard or promote their health.

Children and young people with the capacity to consent

C64
A child or young person’s ability to make decisions depends more on their ability to understand and weigh up options, than on their age. When assessing a young person’s capacity to make decisions, you should bear in mind that:
  1. a child may have capacity to make decisions if you consider them to be capable of understanding the nature, purpose and possible consequences of the proposed examination and treatment, as well as the consequences of non-treatment,213, 214 and
  2. at 16 a young person is presumed to have capacity to make most decisions about their treatment.
C65
You should encourage the child or young person to involve their parents in making decisions, unless the child or young person wishes to exclude them.
C66
You must get the child or young person’s consent to sharing their information if you involve the family.
C67
If a child with the capacity to consent has consented to treatment that you consider is in the child’s best interests, parents cannot override this.
C68
If a child with the capacity to consent refuses treatment, the parents, or a court, can override this decision. In Scotland, those with parental responsibility cannot authorise procedures that a child with capacity to consent has refused.
C69
If a young person with the capacity to consent refuses treatment, the law in England, Wales and Northern Ireland is complex on whether parents can override this refusal.
C70
Although unlikely to occur in optometric practice, if a competent child or young person refuses treatment, which you feel is in their best interests, you should contact your professional or representative body for advice.

 

See section on Safeguarding children and vulnerable adults.

References

213 Gillick-v-West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402
214 In Scotland the Age of Legal Capacity (Scotland) Act 1991, s.2(4) states that a person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.

Winner of Memcom 2016 award for best microsite

Tel: +44 (0) 20 7839 6000

Email: info@college-optometrists.org

Web: www.college-optometrists.org

Website developed by NetXtra