Consent to medical and surgical procedures

Introduction

As a general rule, medical or surgical procedures may not be carried out without the informed consent of the patient.

The Assisted Decision-Making (Capacity) Act 2015 provides laws to support decision-making by adults who have difficulty in making decisions without help. The Act was signed into law on 30 December 2015 but has not yet been commenced to bring it into effect. Read more about the Act (pdf).

Until the Act is commenced, the law is not clear on what should happen in cases where the patient is unable to give consent because, for example, of a mental disorder or because he/she is comatose.

Similarly, the question of what consent is required in the case of children is not totally clear.

Rules

What is consent

In general, valid consent must be informed consent where the patient has sufficient information to be able to understand the nature of what is proposed and the potential risks and benefits involved. The patient must have the capacity to make the decision and must be free to do so without threat or pressure from others.

If there is no consent

If a person carries out medical or surgical procedures without consent, he/she could be charged with the crime of assault - the decision on charges is made by the Director of Public Prosecutions.

He/she could also be sued for the tort (civil wrong) of trespass to the person and possibly for breach of constitutional rights. If the person involved is a medical professional, he/she could also be sued for negligence. The patient may take these actions.

Competence to give consent

If you are a mentally competent adult, there is no doubt about the need for consent but what exactly constitutes informed consent is not totally clear.

You may give a general consent – for example, you may tell your doctor to do what he/she considers best. You may give implied consent by not specifically ruling out certain procedures.

Your implied consent may arise out of necessity – for example, if unexpected complications arise during an operation.

If you are seriously ill and not in a position to give or withhold consent, the doctor may carry out what would be considered usual procedures arising from necessity.

Sometimes doctors may consult with your family or nearest relatives but they really have no legal right to give or withhold consent.

Refusal of medical treatment

It is clear that, if you are a mentally competent adult, you have the right to refuse or discontinue medical treatment even if the inevitable consequence is that you will die. This is different from taking positive measures to end your own life or another person's life.

If you are not mentally competent, you are not in a position to make a decision about refusing or discontinuing medical treatment. The law is not clear on exactly who is competent to do this. In general, a medical professional may make decisions that the treatment should be discontinued for medical reasons. In some countries, Advance Healthcare Directives may be considered legally valid but there has been no ruling on this in Ireland. An Advance Healthcare Directive is a document in which a person sets out their wishes about the continuation or otherwise of medical treatment if they should become mentally incapable.

The Assisted Decision-Making (Capacity) Act 2015 provides laws to support decision-making by adults who have difficulty in making decisions without help. The Act also provides laws for Advance Healthcare Directives. The Act was signed into law on 30 December 2015 but has not yet been commenced to bring it into effect.

An enduring power of attorney does not give the attorney the power to make decisions of this nature on behalf of the person granting the power.

Children

It is the practice for doctors and other medical professionals to get the consent of parents or guardians for medical and surgical procedures to be carried out on minors.

The Supreme Court has held that a health board (now replaced by the Health Service Executive) did not have the right to insist on having a test carried out on a child without parental permission. This case involved the PKU or heel pin-prick test, which is usually carried out on babies shortly after birth.

The Supreme Court held that only in exceptional circumstances would the court intervene and make an order contrary to the wishes of the parents.

Section 23 of the Non-Fatal Offences Against the Person Act, 1997 provides that young people of 16 and over may give valid consent to medical, surgical and dental treatment.

Consent to psychiatric treatment

There are specific laws about consent in relation to the rights of psychiatric patients.

Further information

The National Consent Policy applies to services provided by or on behalf of the Health Service Executive (HSE). The National Consent Policy and guides are available for download. These include guides for patients, professionals and young people.

Page edited: 11 April 2016