Consent in Scotland

• An adult who is capable of making a decision must freely give consent before any medical treatment or care is given.
• Consent is only valid if the patient has sufficient information about the benefits and risks of all treatment options including alternatives to the proposed treatment before making an informed choice.
• Consent may be communicated verbally or in writing, or may be inferred from the patient’s actions.
• Consent may be withdrawn at any time before the treatment has been given.
• The person providing care or treatment must ensure that consent has been given. E.g. a nurse must ensure that consent has been given before administering medication; a healthcare assistant must ensure that consent has been given before washing a patient or taking blood.
• If the adult is not capable of making a decision, then the treatment may be given without consent, if it will benefit the patient.

• Adults with parental responsibility may give consent on behalf of their children.
• Children aged 16 and over will consent to their own treatment, whether or not their parents agree/consent.
• A child under the age of 16 who is capable of understanding the nature and possible consequences of the treatment may give a valid consent. (This can be known as ‘Gillick competence’.)
• If treatment cannot be delayed until a child’s parents can be contacted, then a person with care or control of the child (such as a step-parent, or someone who is looking after the child after school) is able to consent to the child’s treatment if the child cannot consent, and the person does not know that the parents would refuse treatment.
• If the treatment is urgently necessary in the best interests of the child, it may lawfully be given, even if the parents do not consent.
• Where there are serious concerns for the welfare of a child, the courts may intervene. An order of the court may override a child or parent’s refusal of medical treatment, or consent to medical treatment.

Express and implied consent

Consent may be written or verbal. Alternatively, consent may be inferred from the patient’s actions. This is known as ‘implied consent’ and happens every day. It would be hard to provide an efficient and caring health service if explicit consent was sought for every treatment. Everyday examples of implied consent are given below:

• A nurse on a drugs-round offers the patient her usual prescribed medication, which the patient recognises and takes without further discussion. The patient has given a valid implied consent to take the medication.
• A nurse-prescriber prescribes antibiotics for a patient with an infection, explaining the effects, benefits, more common side-effects and risks. The patient takes the prescription to the pharmacy, where it is dispensed, they then take the medicine as prescribed. The patient has given an implied consent to take the prescribed antibiotic. There is no need for the prescriber to ask, explicitly, ‘Do you consent to take this medication?’
• A carer arrives at a patient’s home, to assist the patient with washing. While chatting with the carer about the fortunes of the local football team, the patient allows himself to be washed. The patient has given implied consent for assistance with personal hygiene.
• A patient receives an invitation for a routine X-ray through the post, attends for the X-ray at the appointed time. The patient has given an implied consent for the X-ray.
• The nurse is taking routine observations. When she picks up the blood pressure cuff, the patient holds out her arm as usual. The patient has given consent to having her blood pressure taken.

In any of these cases, if the patient asks questions, or expresses concerns or reservations, these should be discussed fully with the patient. Nursing staff should be satisfied that the patient has consented before providing the care or treatment.

Nurses need to be mindful that they may be seen as being in a position of authority; patients sometimes do what they ask, even if this is against their wishes. If there is any doubt whether implied consent is genuine, the nurse should pause to discuss this further with the patient.

Informed consent

Before giving consent, the patient should be made aware of the benefits and ‘material risks’ of the proposed treatment, any reasonable alternative treatments including the option of no treatment, and of the consequences of not receiving the treatment.

A risk is ‘material’ if a reasonable person in the patient’s position would be likely to attach significance to the risk, or if the nurse should reasonably be aware that this particular patient will attach significance to the risk.

This has been described as a two limb test – objective (what would the reasonable patient want to know) and subjective (what would this particular patient want to know).

Everyday examples of material risk are given below:

• Alison is attending hospital for the removal of a skin lesion. The operation carries very little risk. However, with any operation, there is an extremely low risk that the treating medical professional might make a serious error, with devastating consequences. Does this risk need to be discussed with Alison? The nurse may reasonably conclude that such a low risk is not ‘material’, and need not be discussed unless Alison directly asks about it.
• James is also attending for low-risk procedure. He is severely disabled as a result of a medical error when he was a child. The nurse may reasonably conclude that he would attach particular significance to the risk of medical error, and discuss the extent of this risk with him.
• Paul is a 17-year-old boy with haemophilia, attending for a hepatitis B vaccine. The risks of a haematoma at the injection site are very low in the general population, but significant in haemophiliacs. Therefore, this risk should be discussed with Paul.
• Jane, age 21, is a model, seeking a contraceptive implant. This might result in a scar. While the scar is usually tiny and unobtrusive, Jane is likely to consider it significant. This risk should be discussed with Jane in detail.

Consent forms

It is customary to ask the patient to sign a consent form for surgery and other serious invasive procedures. Written consent is not usually required by law, but is considered good practice. It serves as a record of the information given to the patient, and of the patient’s consent. Written consent is required for some treatments, such as ECT.

Modern consent forms usually include details of the risks and benefits of the procedure. The person obtaining consent should not assume that the patient has read these, but should talk them through with the patient before the patient signs the form.

Just because a patient signs a consent form does not mean informed consent has been achieved. That is based upon what discussion has taken place and what information has been disclosed before the form is signed.

The law on incapacity provides fundamental principles in determining overall benefit that must be followed when providing care and treatment to an adult lacking capacity:

1. Care or treatment should not be provided unless the person responsible for authorising this is satisfied that the care or treatment will benefit the patient. They must also be satisfied that this benefit cannot reasonably be achieved without this care or treatment. 
2. Any care or treatment provided must be the least restrictive option to the patient’s liberty that will bring about this benefit.
3. The past and present wishes of the patient should be taken account of.
4. The views of relevant people (e.g. the patient’s relatives, friends, primary carers, guardians, and attorneys with powers relating to medical treatment) should be taken account of.
5. Care or treatment provided should encourage the patient to use existing skills and develop new skills (if reasonable to do so).
   
    

The patient’s consent is only valid if the patient is capable of making a rational decision. This is known as ‘capacity’. All adults are presumed to have capacity, but are deemed to be incapable if they are incapable of:

1. Acting; or
2. Making decisions; or
3. Communicating decisions; or 
4. Understanding decisions; or
5. Remembering decisions

due to a mental disorder, or inability to communicate due to physical disability. All possible aids to communication should be provided before someone is deemed incapable due to inability to communicate.

"Unwise" decisions

If the patient has capacity, the patient’s decisions must be respected, even though these decisions appear unwise. The following case study is based on an English case that came to court in 1994 but is also appropriate for Scotland.

Case study: refusing life-saving treatment

During a 7-year prison term for stabbing his girlfriend, C was diagnosed with paranoid schizophrenia and moved to Broadmoor. He had delusions of being a world-famous doctor and also delusions of persecution. While at Broadmoor, he developed gangrene in his foot and referred to a surgeon. The surgeon’s view was that, unless his leg was amputated below the knee, he would die.

C refused to consent to amputation. He said that he would rather die with 2 legs than live with one. After hearing C give evidence, the court ruled that, despite his grandiose delusions, C had capably weighed up the pros and cons of the operation and made a genuine personal choice. In view of his lack of consent, it would be unlawful to carry out the operation.

The presumption of capacity

Patients are presumed to have capacity unless and until it is established that they lack it. Nurses should not assume, for example, that a patient with Down’s syndrome or with dementia lacks capacity to make a particular decision, but should carry out an assessment and make a record of this assessment.

Capacity is decision-specific

Capacity is decision-specific. A patient may have capacity to make one decision but lack capacity to make another decision. See the case study below.

Case study: patient with dementia, refusal of medication

Sylvia, age 84, is living with dementia. She takes a Senna tablet every morning for long-standing constipation. On Monday, she develops a chest infection. The doctor prescribes her an antibiotic. On Tuesday morning, she is willing to take the antibiotic without any argument, believing this to be a ‘tonic’. However, she picks out the Senna tablet and says, ‘Not that one. I went five times yesterday.’

Sylvia lacks capacity to make a decision about the antibiotic, since she does not understand its nature and purpose. On the other hand, she clearly understands the nature and purpose of the Senna tablet, and has made an informed choice about whether to take it or not. Therefore, she has capacity to make a decision about the Senna tablet. Her refusal must be respected.

Assessment of capacity - Hard cases

In some cases, it is very hard to decide whether a patient has the capacity to make a decision or not. An example is given in the case study, below:

Case study: personality disorder, refusal of personal care

Archie has a diagnosis of anti-social personality disorder. He has a long history of anti-social behaviour, and a criminal record, including violent and sexual offences. He is of above-average intelligence and has no signs of mental illness. Following a right-sided stroke, he becomes immobile and incontinent.

He is admitted to a care home where he refuses most of the personal care offered. He will remain in a soiled pad for a week or more before permitting the carers to change it. He develops skin problems but will not allow a doctor to examine him. He is articulate about his rights when he refuses care, and appears to understand the issues well.

Archie appears to have capacity to make a decision about his personal care. However, his presentation is complex, and his physical health is suffering. In these circumstances, nurses might seek a psychiatric assessment to help assess Archie’s capacity. If he lacks capacity an application by a relevant person for a guardianship order from the court may be made.

If the conclusion is that Archie has capacity, nursing staff must respect his decision to refuse personal care. However, his behaviour is likely to cause serious problems to staff and other residents. He needs to understand the implications for himself and others if he continues to refuse care. Senior nursing staff should discuss this with him, and consult with his family, if possible, and with multi-disciplinary team, including mental health professionals and a social worker.

They need to consider a safeguarding referral for ‘self-neglect’ and might try to agree a ‘contract’ with Archie, setting out the terms on which he will accept care. If the contract is broken, the home has the right to withdraw his place, though this will always be the last resort.

Providing care or treatment to a patient who lacks capacity

If a patient lacks capacity, healthcare staff may lawfully provide care and treatment without consent, if they assess that this will be for the overall benefit of the patient and will safeguard or promote the physical or mental health of the adult. This does not involve treatments that involve placing an adult in hospital for the treatment of a mental disorder against their will, which requires a different process (see below).

The law on incapacity provides fundamental principles in determining overall benefit that must be followed when providing care and treatment to an adult lacking capacity (these can also be found in the 'Principles of care in adults with incapacity' subsection:

1. Care or treatment should not be provided unless the person responsible for authorising this is satisfied that the care or treatment will benefit the patient. They must also be satisfied that this benefit cannot reasonably be achieved without this care or treatment. 
2. Any care or treatment provided must be the least restrictive option to the patient’s liberty that will bring about this benefit.
3. The past and present wishes of the patient should be taken account of.
4. The views of relevant people (e.g. the patient’s relatives, friends, primary carers, guardians, and attorneys with powers relating to medical treatment) should be taken account of.
5. Care or treatment provided should encourage the patient to use existing skills and develop new skills (if reasonable to do so).
   
    

It is also important to take into account:

1. A patient who is unable to make a fully informed choice should still be encouraged to participate as fully as possible in their care.
2. Some patients have ‘fluctuating capacity’. Discussion should take place at the time when the patient is best able to understand the proposed treatment.
3. If the patient is likely to recover capacity in the future, then the decision should be postponed, if this is reasonably practicable. 
   
    

After consulting with others, as above, it is usually for clinicians to make decisions about the patient’s care. The exception is if the patient has appointed a Continuing or Welfare Power of Attorney, or the Court has made a relevant Intervention Order, or appointed a Guardian for the patient (see below).

Case study: care of an unconscious patient

Yusuf is admitted to hospital unconscious. Following a scan, the medical team diagnose a brain haemorrhage, requiring urgent surgery. Following an assessment, the nursing team conclude that he is at risk of pressure sores and requires pressure-area care. When examining him, the junior doctor notices that he would benefit from removal of a mole on his lip––this is benign, but might become malignant in the future.

Clearly Yusuf is incapable of making a decision. He has an immediate and urgent need for neurosurgery and pressure area care. These treatments are for his overall benefit and can be given without his consent. On the other hand, there is no urgency about removing the mole from his lip. It would be appropriate to postpone this decision until he has had his neurosurgery. If this surgery is successful, he will be able to make the decision for himself.

Case study: dementia, refusal of personal care

On Wednesday, Sylvia (see above) continues to take the antibiotic, believing that this is a tonic. A side-effect of this antibiotic is diarrhoea. In the course of the day, she soils herself, and refuses to allow the nurse to wash her, stating that ‘a peck of dirt did no-one any harm’.

Sylvia still lacks capacity to consent to the antibiotic, and is taking it under a misapprehension. However, it is for her overall benefit to receive it, so the nurses properly continue to give it.

She also lacks capacity to refuse to be washed. This is a serious problem for the nursing staff. It is manifestly unkind to force intimate care upon a resistant patient; this will rarely be for the patient’s overall benefit. The nurses should seek to provide necessary care in a way that is less restrictive of Sylvia’s liberty.

How to do so will vary from patient to patient. Common strategies include coming back later at a time when Sylvia’s perception of the situation might have changed, or allocating the task to different carers. It is often helpful to consult with a near relative of the patient. For example, it is possible that Sylvia’s daughter will be able to persuade her mother to accept a wash.

Determining what will benefit the patient overall can be very complex. For further discussion of this, see the Scottish Government’s report on Good Practice in Shared Decision-Making and Consent.

Covert administration of medication

If a patient without capacity is refusing essential medication, the nurses need to consider what will be of overall benefit to the patient. It is rarely of overall benefit to a patient to give medication forcibly. Nurses may wish to consider whether it would be of overall benefit to the patient to give the medication ‘covertly’, i.e. to conceal the medication in food or a drink.

This is not a decision that should be taken lightly or informally. The Mental Welfare Commission for Scotland guidelines provide that the person with primary responsibility for the patient’s medical treatment can decide whether to authorise covert medication. They should consider whether covert medication is necessary and proportionate, and apply the five fundamental principles of overall benefit (see above).

Prescribing and recording documentation should record that medication is being given covertly, possibly including a Covert Medication Pathway document. If in use, these are available on each Health Board’s website. The need for covert medication should be regularly reviewed at a formal review meeting.

Covert medication must never be given to someone who is capable of deciding about medical treatment.

Care of patients with a mental disorder

Treatment for a mental disorder may be given without consent, subject to statutory safeguards, if the patient has been detained under the Mental Health (Care and Treatment) (Scotland) Act 2003. This applies even if the patient has capacity. Mental health legislation is a subject in itself, and will not be considered further here.

It is important to note that this only applies to treatment for the mental disorder. If a sectioned mental health patient requires physical treatment, the decision should be made in exactly the same way as for any other patient. i.e.

1. Patients with capacity may consent to or refuse the treatment. 
2. Patients who lacks capacity may be treated without consent, subject to the five fundamental principles of overall benefit (see above).

This is illustrated in the case studies above, ‘refusing life-saving treatment’, ‘dementia, refusal of medication/personal care’, and ‘personality disorder, refusal of personal care’.

Withdrawal of life-prolonging treatment

Life-prolonging treatment may be withdrawn from a patient who lacks capacity if it will not be of overall benefit to the patient to continue the treatment. The decision should be made by the multi-disciplinary team, who should consult with the patient’s representative.

Some of these decisions are relatively simple. For example, if the patient is dying, and the effect of the treatment is merely to prolong suffering by hours or days, it may readily be agreed that the treatment should be withdrawn.

However, some decisions are extremely difficult and complex. An example is the decision whether to continue artificial feeding of a patient with prolonged loss of consciousness, who is not expected to recover. This is the subject of authoritative guidance by the GMC, which requires that a second opinion should always be sought before a decision is made.

Where there is a serious dispute about whether life-prolonging treatment should be withdrawn, the courts may need to make a decision. See ‘The role of the courts’, in the 'Supporting capacity' box within this section.

Cardio-Pulmonary Resuscitation (CPR)

Decisions about CPR can be particularly difficult. Authoritative guidance (‘the guidance’) has been given jointly by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing, summarised below.

CPR can be a life-saving treatment. However, survival following CPR is relatively rare: approximately 15–20% if the treatment is given in hospital; approximately 5–10% if the treatment is given outside hospital. Frail nursing-home residents with co-morbidities are particularly unlikely to survive CPR. CPR cannot reverse an underlying condition and may increase suffering. Those who survive may be brain-damaged. Where death occurs, the circumstances of the death are unlikely to be those that the patient or relatives would have wished.

Where practicable, a decision about CPR should be made in advance, rather than in a crisis. A patient with capacity should be fully involved in discussions, and given the best possible information upon which to make a decision. If the patient lacks capacity, a best-interests’ decision should be made by clinicians, after discussion with the patient’s representative. This may result in a ‘do-not-attempt-cardiopulmonary-resuscitation’ (DNACPR) decision. If this decision is made, it should be recorded in writing and prominently displayed in the patient’s records.

If alerted to a valid DNACPR decision, nurses may not lawfully give CPR, other than in exceptional circumstances such as choking or a blocked tracheostomy tube, where the cause of the arrest is readily reversible.

Unfortunately, decisions about CPR are not always made in a timely manner. Nurses have often had to make the decision in a crisis. In these circumstances, there is a presumption in favour of performing CPR. The guidance states:

If no explicit decision has been made in advance about CPR and the express wishes of a person are unknown and cannot be ascertained, there should be an initial presumption that healthcare professionals will make all reasonable efforts to resuscitate the person in the event of cardiac or respiratory arrest. In such emergencies there will rarely be time to make a comprehensive assessment of the person’s condition and the likely outcome of CPR.

In these circumstances initiating CPR will usually be appropriate, whilst all possible efforts are made to obtain more information to guide further decision-making. Healthcare provider organisations and healthcare professionals should support anyone initiating and delivering CPR in such circumstances.

Advance refusal of treatment

A patient may refuse a medical treatment in advance. These wishes can be written and signed by the patient in a document called an Advance Medical Directive or a Living Will. This document must be prepared when the patient has capacity to make the relevant decision.

The nursing team will need to satisfy themselves that the advance refusal of treatment is valid and was made when the patient had capacity to do so. They should ask to see the original document (where applicable) and make a copy for the records. If in doubt, they should run this past a manager or lawyer to ensure that it is valid.

These documents are only potentially binding in Scotland. They have no legislative footing, and it is possible for medical practitioners to override these if they seek legal and ethical guidance.  However, there is a duty to consider the past and present wishes of the patient, and these documents are strong evidence of patient wishes. There is a general consensus that nurses should comply with Advance Medical Directives/ Living Wills, but any decision taken should still comply with the five fundamental principles of overall benefit (see above).

The patient may withdraw the refusal of medical treatment at any time that they have capacity to do so, and the withdrawal need not be in writing.

Patients can also make Advanced Statements regarding how they would or would not like to be treated for a mental disorder, if they have capacity to do so. When making decisions about their treatment, the Mental Health Tribunal should have regard to the wishes outlined in the statement. If an Advance Statement is being overridden, then the Mental Welfare Commission for Scotland should be notified.

There is an expectation that all practicable help and support is provided to enable a person to make decisions independently and provide or withhold consent for care, treatment and support. In is inherent within the NMC Code for all registered nurses to take reasonable steps to meet a person’s communication needs, providing assistance where required.

However, regardless of any legal requirement, the Code requires nurses to take reasonable steps to meet a person’s communication needs, providing assistance where required. 

Practicable help and support could include:

• providing information in an easy-to-read or pictorial format 
• using Makaton, sign language or an interpreter
• seeking assistance from close family or carers
• ensuring that communication aids, such as a hearing aid, is in working order and is used
• assessing the environment for noise levels, comfort, distractions
• having conversations at the time of day when the person is feeling their best
• returning to the conversation later if a person gets agitated or disengages
• avoiding times when medications that may affect a person’s ability to engage have been administered 

This is not a definitive list; the key is an individualised approach that best supports a person’s ability to make decisions independently and therefore provide or withhold consent to care and treatment. Where a person lacks capacity, any decision to provide care, treatment and/or support must be in the person’s best interests (see capacity to consent section).

Advocates and Named Persons

If no other suitable person is available, nurses can request an advocate using the Scottish Independent Advocacy Alliance.

The advocate cannot make decisions on behalf of the patient, but will represent the patient at meetings where these decisions are made. There is no legal requirement for such an advocate to be appointed in Scotland, however people who have a mental health issue, learning disability, autism, or dementia have a legal right to an independent advocate.

Patients over the age of 16 can also nominate a Named Person, if they have capacity to do so. A Named Person can look after the patient’s interests and make decisions about their care when the patient requires treatment under mental health legislation. For patients under 16, their Named Person is the person with parental responsibilities for them. ‘Parental responsibility’ is defined here.

A Named Person differs from an advocate; an advocate helps the patient to express their views about the treatment, whilst a Named Person can put forward their views about the patient’s care and safeguarding their interests. The Named Person’s views may differ from the views of the patient, and they have a right to have their views taken into account.

Information about whether a patient has a Named Person should be in their medical records. However, when providing compulsory mental health treatment to a patient, their Mental Health Officer should know whether a Named Person has been nominated if this is not clear.

Power of attorney for health and welfare

Since 2000, it has been possible to appoint an attorney to make health and welfare decisions on behalf of an individual (a patient) at any time in the future when the individual does not have the capacity to make these decisions themselves. The power of attorney must be granted at a time when the individual has capacity to make these decisions.

This is known as a ‘welfare power of attorney’ (It should not be confused with the ‘continuing power of attorney, which does not authorise the attorney to make health or welfare decisions).

If a patient lacks capacity and has appointed a welfare attorney, then the attorney has the right to be consulted about proposed care or treatment, including life-saving treatment, and to give or withhold consent. For example, the attorney can sign a valid DNACPR. 

The nursing team will need to satisfy themselves that the power of attorney is valid and registered with the appropriate authority. They should ask to see the original form and make a copy for the records. If necessary, they should run these past a manager or lawyer to ensure that they are valid.

Guardianship and Intervention Orders

The court may appoint a person to make health and welfare decisions on behalf of a patient who lacks capacity. The person is appointed by the Sheriff Court. If the person asks for the power to make a one off decision, or do a one-off action on behalf of the patient, then the court can grant them an Intervention Order. If the person will need to act and make decisions for the patient on a longer term basis, then they can be appointed as a Guardian.

Guardianship Orders in particular are becoming more common in Scotland, and are often applied for when the patient has not granted a power of attorney before losing capacity.

Nursing staff will need to satisfy themselves that the guardianship or intervention orders are valid and should ask to see the original documentation and make a copy for the records. If uncertain or if necessary for any other reason, they should run the documentation past a manager or lawyer to ensure that the appointment is valid.

Where a patient has capacity to understand and consent to (or decides not to consent to) treatment, even where there is, for example, a guardianship order in place regarding medical treatment, that patient can give or withhold that consent, even if that differs from the view of their guardian. Where disagreements arise between the Adult and the guardian, these will be dealt with by the court.

In certain circumstances, decisions about the care of adults may need to be made by a court or a statutory body - either the Sheriff Court, the Court of Session or Mental Welfare Commission for Scotland, or Mental Health Tribunal for Scotland.

Large healthcare providers should have procedures in place for seeking a court order or referring matters to the appropriate statutory body, if necessary. Junior nursing staff cannot be expected to know what these are. However, nurses who have grave concerns about the welfare of a patient should consult their managers as necessary.

Examples of situations where the courts or a statutory body may need to be involved are given below.

Sterilisation/hormones

Non-therapeutic sterilisation of an adult who lacks capacity should only take place if authorised by a court, even if the relatives and healthcare staff agree that sterilisation is for the patient’s overall benefit. The courts will hear evidence and arguments on both sides of the question, in order to make a decision on what would be of overall benefit to the patient. 

If necessary, the official solicitor will ensure that the evidence and argument against sterilisation are heard by the court before a decision is made. This is also the same for surgical implantation of hormones for the purpose of reducing sex drive.

When Doctors and Representatives disagree

If there is disagreement about treatment between the doctor and the patient’s representative (a guardian, welfare attorney, or person authorised under an intervention order), the doctor must ask the Mental Welfare Commission to appoint a second doctor to provide an independent medical opinion on the matter.

If the doctor, or any person with an interest in the welfare of the patient disagrees with the second doctor, then they can apply to the court for a determination on whether the treatment should be given or not. The case study at the end of this section deals with an example of this.

When a person with interest disagrees

If the doctor and patient’s representative agree on the treatment, but another person interested in the welfare of the patient disagrees with this decision, this person can appeal the decision to the Court of Session.

Life-sustaining treatment

If there is agreement between healthcare staff and the patient’s representative regarding the withdrawal of life-sustaining treatment, the treating medical professional is responsible for deciding whether authorisation is required from the courts, taking the patient’s representative’s and relatives’ views into account.

Sheriff Court powers

The sheriff court has the power to revoke a power of attorney, make an attorney report to the court, or make the Public Guardian supervise the attorney, if it is necessary to safeguard or promote the patient’s interests.

The sheriff court can also remove a guardian or recall a guardianship order if there is a suitable replacement, or guardianship is no longer required.

If a doctor has decided that an adult is incapable, the patient or someone else with an interest in the patient’s welfare can appeal this to the sheriff court.

Case study: disagreement between a welfare attorney and a medical professional about treatment, and the patient’s overall benefit

Irene is 87 years old, and has vascular dementia. She also has end stage lung cancer, which may be treatable by chemotherapy. Irene’s daughter, Rose, is appointed as her welfare attorney. Irene is assessed to not have the capacity to make this decision. Whilst she does not have capacity for this decision, Irene is refusing the treatment.

Rose would like her mother to have every shot at fighting cancer. She had previously discussed this with Irene, and Irene indicated that she would want to have chemotherapy in this situation. The treating professional does not think that chemotherapy will be of overall benefit to Irene, due to its harsh side effects, and effects on kidney function.

The treating professional should apply to the Mental Welfare Commission to provide a medical practitioner to give a second opinion. There may also be internal processes, such as advocacy that the Health Board uses to resolve disputes.

Once this is done, if there is still disagreement between the treating professional, the second opinion and Rose, the matter can be referred to the court. The court will determine whether chemotherapy is of overall benefit to Irene including considering the following factors:

(i) Whilst it will benefit her to get treatment for cancer, the side effects may severely impact her quality of life;
(ii) Irene may have to attend hospital due to the chemotherapy, which may be restrictive; 
(iii) Her past views seem to be that she would want chemotherapy, but she presently refuses this. This may cause issues with compliance;
(iv) Her daughter/ welfare attorney is in favour of treatment;
(v) It is unlikely that treatment or non-treatment will have an impact on the skills that Irene is able to use. 

In this situation, the court may determine that receiving chemotherapy is not in Irene’s best interests.

Parental consent

Provided that the parents (i.e. persons with parental responsibility) have capacity (see above), they can give or withhold consent to treatment of their children.

‘Parental responsibility’ is defined here.

In Scotland, a mother automatically holds parental responsibilities. A father holds parental responsibilities if he’s married to the mother when the child is conceived, or marries her at any point afterwards. A father unmarried to the child’s mother has parental responsibility if he’s named on the child’s birth certificate (if the child was born after 4 May 2006), or if he has entered into a written agreement with the mother, or if he has been given parental responsibility by the court.

Other people who may have parental rights or responsibilities include same sex partners of the father or the mother, guardians of the child, or step-parents. For more information, click here.

In the remainder of this guidance, the word ‘parent’ will be used to mean any person with parental responsibility.

Children under 16: Capacity to consent

In Scotland, legislation on children and capacity states that a child under the age of 16 will have capacity to consent to any surgical, medical or dental procedure or treatment where, in the opinion of their medical practitioner, they are capable of understanding the nature and possible consequences of the procedure or treatment. In England, this is commonly called “Gillick competence,” following the English court case brought by Victoria Gillick in 1986. While sometimes known as this in Scotland, it is also known as S2(4) Competence, based on the relevant section of the legislation.

Nurses should note the following principles when considering whether a child under 16 is S2(4) Competent, i.e. if they have the capacity to consent to or refuse treatment. 

1. The child must understand the benefits and risks of the treatment, and the consequences of not receiving the treatment.
2. However, there is no equivalent of the ‘presumption of capacity’ for children under 16. The nurse should specifically assess the understanding of the individual child in order to determine if they have the capacity to make the decision, in other words if they are S2(4) Competent.
3. It is best practice to make a record of this assessment.
4. The assessment is decision-specific. A child under 16 might have the capacity to make one decision but not another.

These principles are illustrated in the case study below.

Case study: Capacity in the under 16 child

Naheeda is an intelligent 13-year-old girl, with type-1 diabetes. She manages her own blood sugar measurements and insulin injections. She makes an appointment with Emma, a nurse-practitioner at her GP surgery, and attends this appointment alone. She has attended all previous medical appointments with one or both parents.

She explains that she has early symptoms of a urinary infection, and shows a very good understanding of the need to treat this infection promptly and to monitor her diabetes closely while the infection is brought under control. She has had trimethoprim before, and knows the benefits and potential side-effects. Emma records that Naheeda has the capacity to consent to antibiotic therapy, and prescribes trimethoprim.

Naheeda also wishes to discuss a change in the treatment of her diabetes, from insulin injections 4 times a day to an insulin pump. She explains that her cousin is now using an insulin pump successfully.

Emma believes that this change of treatment might well be appropriate, but is not confident that Naheeda understands all the implications. She makes a record of her reservations, and asks Naheeda to make another appointment, to be accompanied by one or both of her parents, to discuss this.

It is important to note that in Scotland, S2(4) competence applies to both the ability to consent to treatment and to refuse treatment. Such a refusal cannot be overridden by the child’s parent. This position is different to that in England.

Providing treatment on the basis of one person’s consent

The general rule is that nurses may lawfully administer treatment to children on the basis of one person’s consent only. Examples are given below:

1. In the case study above, Emma need not consult Naheeda’s parents about the antibiotic treatment.
2. If one parent subsequently consents to a change to Naheeda’s diabetes treatment, Emma need not consult the other parent.
3. A school nurse may give a vaccine to a consenting Gillick-competent child without consulting the child’s parents.

However, if nursing staff become aware of a dispute between parents, or between a parent and the child, they should consider carefully whether to proceed with the treatment or not. See the 'Consent specific issues' box in this section for more information.

Contraceptives to children under 16

Under the criminal law, the age of consent for sexual activity with another person is 16. Any person who knowingly engages in sexual activity with a person under 16 commits an offence.

This raises a particular problem if a child under 16 seeks contraceptive advice. This was discussed in the case of Gillick. A practitioner my lawfully provide contraceptive advice, or prescribe contraceptives, to a competent child under 16, without the knowledge or consent of the parents, if satisfied that:

1. The child understands the advice;
2. That the child cannot be persuaded to inform their parents, or to allow the practitioner to do so;
3. That the child is likely to engage in sexual activity with or without contraceptives;
4. That, without contraceptive advice, the child’s mental and/or physical health is likely to suffer;
5. That the child’s best interests require contraceptive advice or treatment, without parental consent.

Urgent treatment in the absence of consent

If a child is at imminent risk of death or serious harm, but a valid consent cannot be obtained for the necessary treatment, it is lawful to give this treatment without consent. See the case study below:

Case study: emergency treatment of a child

Alan, age 9, has an epileptic seizure at school. He is brought to A+E by ambulance, unconscious. While in A+E, he has further seizures. It has not been possible to contact his parents. Without immediate treatment for his seizures, he is likely to die or suffer brain-damage.

Staff should, of course, give all the treatment necessary to bring Alan’s seizures under control, and not wait until parental consent is available.

Life-saving treatment that is refused by parents or the child

Difficult situations arise when parents or a child under 16 who is deemed to have capacity to understand the decision refuse life-saving medical treatment. Most commonly, the reasons for refusing are religious; for example, if the child is a Jehovah’s witness, and either the parents or the child or both refuse a blood transfusion.

The general rule is:

1. Life-saving treatment may usually be given to children under 16 and who are not S2(4) Competent against their will (unlike adults), and/or the will of their parents.
2. If there is time to do so, clinical staff should seek a court-order, requiring the treatment to be given.
3. However, if there is no time, emergency life-saving treatment should be given without consent or a court-order.
   
    

NHS health boards and other healthcare organisations should have procedures for seeking an emergency court order where necessary. It should be noted that, when a child’s life is at stake, a court-order can usually be obtained the same day. Again, junior nursing staff cannot be expected to know or understand legal procedures, but should consult their managers if they have serious concerns about the welfare of a child.

In Scotland, the law states that a child can refuse medical treatment if they have the capacity to do so. In this situation, the parents cannot consent in the child’s place. However, the law is Scotland is not clear about whether this applies to life-saving treatment, with the only reported case regarding the refusal of a competent child to be treated for a mental disorder in hospital. If you come across a situation in which a competent child is refusing life-saving treatment, you should seek legal advice.

The role of the courts and statutory bodies

The role of the courts and statutory bodies was alluded to above. This is not confined to life saving treatment. For example, the courts or a statutory body may come to be involved in the following circumstances:

1. Parents disagree about whether a treatment should be given;
2. Determining whether or not a child has the capacity to consent to or refuse treatment;
3. Social services, medical staff, or other competent professionals have concerns that treatment decisions made by the child’s parents are not in the best interests of the child.
   
    

In all cases, the court is required to treat the best interests of the child as of paramount importance. The term 'best interests' is used in a wide sense; it includes, but is not limited to, medical considerations, such as:

1. The wishes of the child, if known, are taken into account, in view of the potentially harmful effects of denying autonomy to a child. However, these are not decisive.
2. The wishes of the parents are also taken into account, in view of the importance of the parent-child relationship. Again, these are not decisive. 
3. The parents’ wish to bring the child up in a particular religion is treated with respect, as are any religious affiliations that the child may have, independent of the parents. However, these are unlikely to be decisive, if there is a risk of serious harm to the child.
4. Blanket decisions should not be made on the basis of the child’s diagnosis. The child’s individual circumstances should always be taken into account.
5. A child who is unable to make a fully informed choice should still be encouraged to participate as fully as possible in their care.

When the nurse is notified of a dispute

A nurse who is alerted to a dispute may need to delay non-urgent treatment until this dispute is resolved. This is illustrated in the case studies below:

Case study: dispute between parents, vaccination

Agnieszka’s mother makes an appointment to bring 1-year-old Agnieszka to the surgery for her MMR vaccine. In the ordinary way, the practice nurse would give this vaccine on the basis of the mother’s consent alone. However, before the appointment takes place, the surgery receives a letter from Agnieszka’s father, objecting to the inoculation on the basis that this might cause autism and inflammatory bowel disease.

In this situation, it would be reasonable and appropriate for the practice nurse to delay vaccination until the dispute has been resolved. This is in accordance with guidance given by the Department of Health and approved by Health Protection Scotland . The dispute may need to be resolved in the courts or by a statutory body. There are a number of English cases where the courts have ruled in favour of vaccination, but this issue hasn’t been considered by the Scottish courts and such a ruling should not be presumed.

Case study: dispute between parents, circumcision

Buster is 2 years’ old. His father would like him to be circumcised, for religious reasons. His mother does not want him to be circumcised.

It would be inappropriate for the surgical team to proceed with the circumcision unless and until the dispute is resolved. Again, the dispute may need to be resolved in the courts or by a statutory body. There are English cases (this issue hasn’t been considered by Scottish courts) where the courts have directed that the procedure should be deferred until the child can make his own choice, but this should not be presumed.

Case study: dispute between parent and child, circumcision

12 years later, Buster, aged 14, seeks circumcision on his own behalf for religious reasons, which he articulates well. His father has died in the interim. His mother still opposes the operation.

Here, the balance has shifted in favour of circumcision. However, Buster is still a child; circumcision is an irreversible surgical procedure, which would have major implications for him in the future. At age 14, there may be doubts as to whether he can fully understand these implications. If so, best practice would be to defer a decision about surgery until the dispute has been resolved, in court if necessary.

Case study: Gillick-competent child, vaccination

12 years later, Agnieszka, aged 13, requests an MMR vaccine on her own account. She shows a good understanding of the effects and potential side-effects of the vaccine. It is known that her father still opposes the vaccine.

If the practitioner considers Agnieszka has the capacity to make the decision, i.e. understands the consequences, it would be usual practice to administer the vaccine in these circumstances.  In contrast to circumcision, the implications of the vaccine can readily be understood by teenagers; there are real and immediate health-benefits to the child and no real prospect of long-term complications or difficulties. In the circumstances, the nurse may reasonably conclude Agnieszka’s consent and capacity to do so should override her father’s objection.