Critical care decisions in fetal and neonatal medicine: ethical issues
Appendix 5: Consent for treatment
It is a general legal and ethical principle that valid consent must be obtained before examining or treating a patient whenever possible. This principle reflects the right of an individual to determine what is done to their own body. For consent to be valid, it must be:
- informed, that is, given after explanation of the procedure involved
- given by someone who has the capacity to consent, that is, given by someone able to understand and retain the information provided about the procedure
- given voluntarily.
In the case of babies and infants, consent for treatment is normally provided by someone with parental responsibility for the child.14 In providing consent, parents are required to consider what they judge to be in their child’s best interests (see paragraph 8.20).15
Issues relating to consent may arise when a relative is not available to provide consent for the treatment of a child, for example when urgent treatment is needed after birth when a mother may herself be receiving medical attention. Guidance documents issued by the Department of Health, the British Medical Association (BMA) and the General Medical Council (GMC) suggest that in an emergency a doctor would be justified in providing treatment for a child without consent if the treatment was urgently required and in the child’s best interests (see Appendix 9). The British Association of Perinatal Medicine (BAPM) specifically comments on the case of the newborn: “In emergency, if consent cannot be obtained, e.g. because nobody with parental responsibility is available or the parents are too distressed to give valid informed consent, treatment may lawfully be started if clinicians believe it to be in the child’s best interests.” The Association notes that “It should always be possible later to justify that action to the parents, and to reassure them that what was done was in the best interests of the baby.” In other situations where it is not possible to gain consent, it advises health professionals to contact Social Services and, if necessary, seek legal advice.16
Consent can be obtained in different ways depending on the situation and procedure involved. In some cases a parent complying with a health professional’s request, for example to open the child’s mouth for their throat to be examined, would be considered to be consent (sometimes called implicit consent). In other cases, usually where the treatment is more complex or where significant risks or side effects are involved, consent is given explicitly, either verbally or by signing a form. BAPM has produced a list of common neonatal investigations and interventions and suggests whether or not explicit consent should usually be required.17
Footnotes14 The Children Act 1989 sets out persons who may have parental responsibility. Depending on the circumstances this may be one or both parents, a legally appointed guardian, or a Local Authority. For further details see Department of Health (2001) Reference Guide to Consent for Examination or Treatment, available at: http://www.dh.gov.uk/assetRoot/04/01/90/79/04019079.pdf, accessed on: 25 May 2006.
15 Department of Health (2001) Consent – What You Have a Right to Expect: A guide for parents, available at: http://www.dh.gov.uk/ assetRoot/04/11/73/53/04117353.pdf, accessed on: 27 July 2006.
16 British Association of Perinatal Medicine (2004) Consent in Neonatal Clinical Care: Good practice framework, available at: http://www. bapm.org/publications/, accessed on: 17 Nov 2005.
17 Ibid. It should be noted that the judgement in the recent case of Glass v UKendorsed a strong presumption in favour of a parent’s claim to a voice in their children’s care and that parental wishes should not be overruled without a hearing in court (see paragraph 8.10 of this Report).