Author – Salma Salem  Editor Mohona Sengupta

Last updated 26/03/24

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Consent is an important aspect of medical practice. It is a requirement in everyday practice as part of examining patients, performing investigations and procedures as well as overall health decisions.

Types of Consent

Consent may be given in different forms, which are deemed acceptable depending on what the consent is used for. There are certain requirements for each type of consent, so it is important to be aware of this before asking for consent from the patient

Overall, if verbal consent is acceptable, then is it considered just as valid as written consent. This is because some individuals may not be able to read or write (for example, those who’s first language is not English, any disorder affecting movement e.g muscular dystrophy)

Verbal consent 

  • This is consent 
  • Examples of when it is permissible to give verbal consent include: 
    • Medication such an painkillers, antibiotics 
    • An abdominal examination
    • Investigations such as a chest x-ray

Written consent 

  • This consent 
  • Examples of when written consent is required: 
    • Any surgical procedure 
    • Storage and use of gametes and embryos in fertility treatment.

What makes consent valid?

Consent can only be valid if it fulfills 3 criteria:

  • It must be voluntary 
    • The patient should decide freely. There should be no element of coercion or pressure involved from friends, family or medical practitioners. 
  • It must be informed 
    • The patient must have sufficient knowledge on the topic to be able to make a competent decision. 
    • For example, this may involve an explanation of a procedure with its associated risks, benefits, complications and recovery. Alternatives to the procedure must also be explained and how the outcome may vary.  
  • The person giving consent must have capacity
    • Capacity involves being able to understand the information, retain it long enough to weigh up the options and then communicate their final decision. 
    • It is important to note that capacity is situation-specific, and several factors can affect someone’s capacity to consent. 
    • You should always assume that a patient has the capacity to consent until proven otherwise.

Mental health and Consent

The Mental Capacity Act (MCA) is designed to protect people who may lack the mental capacity to make their own decisions about their care. It applies to people aged 16 and over.

If a patient is held under the Mental Health Act, they can be treated against their will. This is due to the fact that they are deemed to not have sufficient capacity to make a decision on their healthcare. 

How is mental capacity assessed?

The MCA sets out a 2-stage test of capacity:

  • Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
  • Does the impairment mean the person is unable to make a specific decision when they need to? 

The MCA says a person is unable to decide if they cannot do 1 or more of these things:

  • understand the information relevant to the decision
  • retain that information for long enough to make the decision
  • use or weigh up that information as part of the process of making the decision
  • communicate their decision




A person may be sectioned, which means they are kept in hospital under the Mental Health Act. This may be voluntary or involuntary. 

Sectioning may be necessary for a number of reasons including certain mental disorders and the health and safety of the patient or others. 

There are many different sections to be aware about. The most commonly used ones include:

  • Section 2 – Detained for up to 28 days
  • Section 3 – Detained for up to 6 months 
  • Section 5 (2) – Detained for up to 72 hours
  • Section 5 (4) – Detained for up to 6 hours or until a doctor or clinician with authority to detain arrives.

What to do if consent is not valid?

If the consent provided does not meet the 3 criteria listed above, it is important to think about the next steps you can take to continue patient care. 

Importantly, a patient lacking capacity should not be denied necessary treatment.

Options include: 

  • Lasting power of attorney (LPA) 
    • This is a legal document that allows a patient to decide who can make future decisions for them should they lose the capacity to consent. An example of this includes a stroke, where the patient may lose the ability to understand the information relayed to them.
    • There are 2 types of LPA
      • health and welfare
      • property and financial affairs
    • An attorney can be anyone aged 18 and above and does not need to live in the UK. 
    • Patients can have more than one attorney
    • It can take up to 20 weeks to process this form, therefore alternative measures may need to be explored if an LPA has not yet been finalised. 


  • Advanced directive 
    • A decision made by the patient, whilst they still have the capacity to consent, to refuse certain types of treatment in the future. It takes precedence over any other decision. 
    • A common example of this is a Do Not Attempt Cardiopulmonary Resuscitation (DNACPR). 
    • Advanced directives are legally binding. This must be written and signed by the patient with a witness involved. 


  • Advanced statement 
    • This statement described the patient’s wishes, beliefs and feelings about their care and management but is not considered legally binding.
    • It can be used alongside other factors to help healthcare professionals and family members come up with a plan
  • Acting in the patient’s best interest 
    • Normally a multidisciplinary team (MDT) is required to make a decision on a patient’s management if a lasting power of attorney and advanced directive are not present. 
    • This can also used when patients are presenting in a life-threatening situation. 
    • This may also be the most sensible option if you suspect the LPA is abusing their position or the patient. 


  • Appointment of healthcare proxy 
    • For incapacitated adults, the Mental Capacity Act 2005 has set guidelines for the appointment of a proxy decision maker. 
    • A proxy can have access to their health information. 


  • Court – The Court of Protection’s Practice Direction states that some matters should be dealt by the court. Cases that would necessitate court intervention include
    • Decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state
    • Cases involving organ or bone marrow donation by a person who lacks capacity to consent
    • Cases involving non-therapeutic sterilisation of a person who lacks capacity to consent.


Consent is seen in everyday practice, and it is important to be familiar with the ethico-legal factors associated with it. A person may be capacitous to consent for some decisions and not others depending on the complexity of the situation.

It is important as healthcare professionals to not abuse the power of making decisions on behalf of patients who are unable to consent and instead endeavour to involve as many people as possible, including family and other members of the team, when making life-changing decisions. 

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