Consent to medical and surgical procedures
As a general rule, medical or surgical procedures may not be carried out without the informed consent of the patient.
In general, valid consent must be informed consent, where the patient has enough information to be able to understand what is proposed and the potential risks and benefits. The patient must have the capacity to make the decision and must be free to do so without threat or pressure from others.
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 has not yet been fully commenced to bring it into effect in this area. Read more about the Act (pdf).
Until the Act is fully commenced, the law is not completely clear on what should happen in cases where the patient is unable to give consent because, for example, of a mental disorder or because they are comatose.
Similarly, the question of what consent is required in the case of children is not completely clear.
There are specific laws about consent in relation to the rights of psychiatric patients.
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 they consider 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.
If there is no consent
If a person carries out medical or surgical procedures without consent, they could be charged with the crime of assault - the decision on charges is made by the Director of Public Prosecutions.
They could also be sued for the torts (civil wrongs) of assault and/or battery and possibly for breach of constitutional rights. If the person involved is a medical professional, they could also be sued for negligence. The patient may take these actions.
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.
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.
An Advance Healthcare Directive may be valid and enforceable because, by making it, you may have withdrawn your consent to specific medical or surgical treatment. It is not possible to state with absolute certainty that such a directive would be enforced because this depends on exactly what it says and whether or not it addresses the precise circumstances you face.
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 a statutory framework for Advance Healthcare Directives. The Act has not yet been commenced to bring it into effect in these areas.
An enduring power of attorney does not presently give the attorney the power to make decisions of this nature on behalf of the person granting the power. However, this may change when the 2015 Act comes into effect.
In general, children aged 16 or over may themselves give consent to surgical, medical or dental procedures, without requiring the consent of their parents or guardians. This is provided for in the Non-Fatal Offences Against the Person Act 1997.
It is the practice to get parental consent to medical procedures for children under that age, even though it is not entirely clear that parents have the ultimate decision. However, a child’s views should also be sought and, in the limited cases where a medical professional believes the child is sufficiently capable of making the decision, their consent should be sought.
Generally, a medical professional cannot override the requirement for parental consent for a young child. However, the best interests of the child is the fundamental guiding principle and the requirement for parental consent may be overridden where the child’s life is at risk.
Like other medical procedures, a child aged 16 or over may consent to having an abortion. However, the doctor providing the service must be confident that the child fully understands the information in order to give a valid consent. A child aged 16 or over, but under the age of 18, will normally be encouraged to involve their parents or another supportive adult. However, if the child is over 16 they can choose not to involve an adult.
In exceptional circumstances, a child aged 15 or under can choose to have an abortion and not involve her parents or another supportive adult if the doctor believes the child is capable of consenting, following an appropriate assessment.
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.