The Royal College of Emergency Medicine

Best Practice Guideline

Consent in Adults,
Adolescents and
Children in Emergency
Departments

Revised: January
2018
Summary of recommendations

1. Patients have the right to determine what happens to their own bodies.

2. For minor procedures, such as venepuncture, physical examination, small wound

closure or ECG recording, cooperation with the procedure amounts to valid implied
consent

3. If completion of a consent form will result in an inappropriate delay and increase the risk
of patient harm or prolong suffering, a record of the consent discussion should be clearly
documented in the patient’s notes. This should be completed as soon as reasonably
possible.

4. In an emergency and if it is not possible to find out a patient’s wishes, treatment can be
provided without patient consent, provided the treatment is immediately necessary to
save their life or to prevent a serious deterioration of their condition and in their best
interests
Scope
This guideline offers guidance for clinicians working in Emergency Departments in the
United Kingdom about obtaining consent. The guideline is mainly written for clinicians
working in England and Scotland. Legislation in the other devolved nations and the
Republic of Ireland differs, though the principles of autonomy and capacity are broadly
similar and the clinical practice of obtaining consent varies little between these nations.
This guideline does not consider consent to participation in research studies, retention of
human tissue or sharing of information.

Reason for development

Patients requiring care at the Emergency Department present particular challenges to
ensure valid consent. Patients often attend in a crisis and may have their capacity
impaired by therapeutic or recreational drugs. These patients are attended to by
clinicians who may have to make time critical decisions based on incomplete information.
The Emergency Department can be a disorientating and frightening environment for
patients.

A patient is often anxious, afraid and in pain and this can impair their ability to make
reasoned and rational choices about their care. Good consent also forms a medico-legal
defence for the treating clinician in the event of adverse outcome or complaint.
This guideline is designed to augment the guidance offered by the General Medical
Council and the Department of Health as the Royal College of Emergency Medicine has
identified where further guidance is required.

Introduction
General guidance on obtaining valid consent for examination and treatment is provided
by the Department of Health Reference guide to consent for examination and treatment -
Second Edition (July 2009), The GMC ‘Consent : Patients and doctors making decisions
together’ (2008), and the Mental Capacity Act (2005) (MCA). In Scotland, the relevant
legislation governing the issues of consent, capacity and autonomy is primarily contained
in the Mental Health (Care and Treatment)(Scotland) Act 2003 and in the Adults with
Incapacity (Scotland) Act 2000.

The following aspects of consent; autonomy and capacity, are particularly relevant to
care in Emergency Departments. There is guidance on the MCA specific to the
Emergency Department written by the Royal College of Emergency Medicine.
Patient autonomy – the foundation for consent
Patients have the right to determine what happens to their own bodies. For consent to be
valid, it must be given voluntarily and freely, without pressure or undue influence being
exerted to accept or refuse treatment, by an appropriately informed person who has the
capacity to consent to the intervention in question.

In adults, consent may only be provided by the patient, someone authorised to do so

under a Lasting Power of Attorney, or someone who has the authority to make treatment
decisions, such as a court appointed deputy in England and Wales, or a guardian with
welfare powers in Scotland.

No one else can make a decision on behalf of an adult who has capacity.

Emergency Treatment - Patients Lacking Capacity

In the setting of a clinical emergency and if it is not possible to find out a patient’s wishes,
treatment can be provided without patient consent, provided the treatment is
immediately necessary to save their life or to prevent a serious deterioration of their
condition.
Patient care should be the Emergency Department clinician’s first concern. Patients
should be treated as individuals, and their dignity should be respected. Patients should be
treated with respect and not discriminated against.

Where there is doubt as to the appropriateness of treatment, there should be a

presumption in favour of providing life-sustaining treatment. Any treatment decision made
in the absence of consent must be made in that person’s best interests (see RCEM
guidance on the Mental Capacity Act).

If a decision is time-critical, consideration should be made of whether the patient is likely

to regain capacity in sufficient time to allow him/her to give consent. If not, and a delay in
initiating treatment would likely be detrimental to the patient’s wellbeing, a best interest
decision should be reached.

Where there is a choice of treatment, the treatment provided must be the least restrictive
on the patient’s future choices.
Restraint
Emergency Department clinicians are occasionally asked to consider restraining a
patient, either physically or chemically. The clinician should look for underlying treatable
causes of the condition that requires restraint.
Restraint is defined as:
• The use or threat of using force to make a person do something that they are
resisting or, the restriction of liberty of movement, whether or not the person resists.

Restraint may at times be considered a ‘best interest’ intervention, allowing effective

management of a patient lacking capacity whose behaviour represents a risk to that
patient. It can only be considered acceptable if:
• The person using it reasonably believes it is necessary to prevent harm to the person
who lacks capacity.
• The restraint used is a proportionate response to the likelihood and seriousness of
harm.
• This action does not conflict with a previous decision made by an attorney or
deputy under their powers.

Restraint by its nature will infringe on the liberty of the treated individual. Such infringement
may amount to restriction or deprivation of liberty. This distinction is an important one as
deprivation of liberty in the absence of ‘a procedure prescribed by law’ is a contravention
of Article 5(1) of the Human Rights Convention.

In the setting of an Emergency Department, short term restraint of a patient without

capacity generally amounts to restriction rather than deprivation of liberty. 'This is
permissible under the Mental Capacity Act (where the capacity has been assessed and is
found to be lacking), or under common law where capacity has not yet been assessed. If
the patient might have capacity, but assessment is not possible immediately, then restraint
may be used lawfully in certain emergency circumstances (as a last resort), provided the
tenets and principles discussed above are followed, and appropriate policies and
procedures are followed.

Where repeated or prolonged restraint is required, the boundary from restriction into
deprivation risks being crossed. Such deprivation of liberty can be medically justified under
the Mental Health Act, or under the Deprivation of Liberty Safeguards (DoLS) as part of the
Mental Capacity Act. The Mental Capacity Act DoLS protect vulnerable adults, who lack
capacity to consent to treatment or care in hospital that, in their own best interests, can
only be provided in circumstances that amount to a deprivation of liberty, and where
detention under the Mental Health Act is not appropriate for the person at that time. DoLS
aim to prevent arbitrary deprivation of liberty.

It is not appropriate to apply the DoLS where sedation or other medication is intended to
facilitate treatment, for instance the use of sedation to facilitate ventilation in a patient
with respiratory failure, but rather to situations where the primary aim is restraint.
Consent
Consent must be given voluntarily and freely, without pressure or undue influence being
exerted on the patient to accept or refuse treatment. A person needs to understand the
nature and purpose of the procedure in order to give valid consent. Any
misrepresentation of these elements will invalidate consent.

Emergency Department clinicians should be aware of the potential influence of family,

friends and healthcare workers on a patient’s consent decision. As far as reasonably
possible, the Emergency Department clinician should establish that any consent decision
made is truly that of their patient. Coercion (persuasion by threat, trickery, intimidation or
other form of pressure or force) is unacceptable and invalidates consent; this should not
be confused with appropriate reassurance concerning a particular treatment, or the
highlighting of potential benefits of treatment on a patient’s health.

When deciding on what information to provide, the principles of the ‘Bolam test’ should
be employed, this has subsequently been refined by the Montgomery judgement.
However, the courts have in the past been critical of responsible bodies of medical
opinion, and they are consequently the final arbiter of what constitutes responsible
practice. As a result, it is advisable to inform the patient of all significant possible and/or
unavoidable risks however unlikely, the potential benefits of treatment, the risks of
procedural failure, details of alternatives to that particular treatment, and the risks incurred
by doing nothing.
• In assessing risk, consideration should be given to any patient-specific factors such
as severity of illness or co-morbidity which raise the likelihood of adverse outcomes
occurring as well as important occupational and lifestyle factors.
• Where relevant, information about anaesthesia or sedation should be provided as
well as information about the procedure itself.
• Information should be provided using clear, simple and consistent language. Simple
and accurate written information, visual or other aids may be used if they help your
patient to understand.

The Montgomery judgement describes ‘materiality’ “A material risk is one that a

reasonable person in the patient’s position is likely to attach significance to, or if the
doctor is or should reasonably be aware that their patient would be likely to attach
significance to it.” What is important (or likely to be important) to the patient needs to be
discussed as part of the consent process, not only risks that are considered significant, and
this necessitates discussing with the patient their opinions on risks and outcomes as well as
their concerns and preferences.

In essence the Montgomery judgement modifies the ‘Bolam test’ as it applies to consent
(cf the Sidaway v Bethlem Royal Hospital Governors [1985] AC871), and the case is
summarised in the GMC guidance (available on the GMC website). The concept of
‘materiality’ is described in the judgement; discussion should not only include any
‘material risk’ which a ‘reasonable person’ is likely to ‘attach significance’ to, but also
what the doctor ‘should reasonably be aware’ that a specific patient ‘would be likely to
attach significance to’. Hence, what is likely to be important to the patient needs to be
considered, and involves a detailed discussion with the patient on what their opinion of
the risks and outcomes, as well as their concerns and preferences.

Many instances spring to mind in ED practice, especially when considering sedation for
procedures. For example, when discussing sedation, rare events without long term
sequelae (which some patients (and doctors) may consider minor) may be a
considerable concern for other patients; loss of inhibition and control for example.

The clinician providing the treatment or investigation is responsible for ensuring that valid
consent has been obtained before treatment begins. However the task of obtaining
consent may be delegated to another suitably trained and qualified person.

A competent patient can withdraw consent at any time, even during a procedure. This
wish must be respected provided that the patient still has capacity. If withdrawal of
consent occurs mid-procedure, the Emergency Department clinician should ascertain the
problem, ensure the patient’s capacity has not changed, and explain the consequences
of abandoning the procedure. If stopping the procedure might endanger the life of the
patient, the healthcare professional is entitled to continue until that is no longer the case1.

If a patient states that they do not wish to know in detail about their condition or the
proposed treatment for which consent is being sought, their wishes should be respected
as far as possible. However, if competent, they must still receive the basic information
required in order to give valid consent. Such information is likely to include whether the
procedure is invasive, what level of pain they might experience, what can be done to
minimise this, and if it involves any serious risks. Patient refusal to know in detail about the
proposed treatment should be carefully documented in the patient’s notes.
Consent in children and adolescents
The issues of consent is more complicated in those under 18, as the Children Act (1989)
defines childhood as under 18, but the Family Law Reform Act (1969) defines children as
under 16.

Regardless of age, emergency treatment to save life or prevent deterioration can be

given without consent.

In general, medical treatment can be given with consent of the child, or one parent, or
the court.

The principles relating to care of incapacitated patient are similar to those in adults, and
covered in the RCEM guidance on the Mental Capacity Act. That is, the patient cannot
understand, retain and use, weigh in the balance the information, and communicate their
wishes. Obviously, parental views should be taken and weighted appropriately in
determining the best interests of the child, along with other considerations and views that
are taken into account when considering best interests.

Consent can be obtained from a child; if they are deemed competent (this competency
depends not only on the age and maturity of the child, but also the nature of the
procedure and its possible effects). At 16, children generally can be presumed to have
capacity to give consent. Across the United Kingdom, for 16-17 year olds the legal
framework differs, and therefore an appreciation of this is required.

Parents cannot override competent consent given by a child, and the reverse is legally
complicated (i.e. overriding competent refusal of child by parents) and legal advice
should be sought (in Scotland parents cannot override this refusal).
Authors
This version authored by:
James France
Catherine Hayhurst

Revised January 2018. First published in December 2017

Initial guidance authors (Consent, capacity and restraint guideline):

Adrian Boyle
David Martin
Simon Bell
Keith McKillop
Dorothy Akapama

Acknowledgements
Simon Smith
The Best Practice Subcommittee of the Quality in Emergency Care Committee, RCEM

Review
Usually within three years or sooner if important information becomes available.

Conflicts of Interest
None declared

Disclaimers
The College recognises that patients, their situations, Emergency Departments and staff all
vary. This guideline cannot cover all possible scenarios. The ultimate responsibility for the
interpretation and application of this guideline, the use of current information and a
patient’s overall care and wellbeing resides with the treating clinician.

Research Recommendations
None suggested

Audit standards
None suggested

Key words for search

Consent, Restraint, Capacity
Appendix 1

Methodology
Where possible, appropriate evidence has been sought and appraised using standard
appraisal methods. High quality evidence is not always available to inform
recommendations. Best Practice Guidelines rely heavily on the consensus of senior
emergency physicians and invited experts.

Evidence Levels
1. Evidence from at least one systematic review of multiple well designed randomised
control trials
2. Evidence from at least one published properly designed randomised control trials of
appropriate size and setting
3. Evidence from well designed trials without randomisation, single group pre/post,
cohort, time series or matched case control studies
4. Evidence from well designed non experimental studies from more than one centre or
research group
5. Opinions, respected authority, clinical evidence, descriptive studies or consensus
reports.
Bibliography/Useful resources
• Department of Health. Reference guide to consent for examination or treatment
(second edition), July 2009.
• General Medical Council. Consent: patients and doctors making decisions
together, June 2008.
• Mental Capacity Act 2005.
• B V Croydon Health Authority, 1994.
• Keywood, K. B V Croydon Health Authority 1994, CA: Force-feeding the Hunger
Striker under the Mental Health Act 1983. Web JCLI:3;1995.
• Re C (Adult, refusal of treatment), 1994.
• Re B (Adult, refusal of medical treatment), 2002.
• St George’s Healthcare NHS Trust v S, 1998.
• General Medical Council. Good Medical Practice, 2013.
• Bolam v Friern Hospital Management Committee [1957]
• Mental Capacity Act 2005: Code of Practice, 2007.
• Council of Europe. European Convention on Human Rights, 1950.
• Cutter WJ, Greenberg K, Nicholson TRJ, Cairns R. Identifying and managing
deprivation of liberty in adults in England and Wales. BMJ 2011;342:163-342.
• Mental Capacity Act 2005: Deprivation of Liberty Safeguards – Code of Practice,
2008.
• Menon DK, Chatfield DA. Mental Capacity Act 2005: A Guide for Critical Care
Settings. The Intensive Care Society.
• NM vs Lanarkshire Health Board, 2015
• Re T (Adult), 1992.
• Sidaway v Board of Governors of the Bethlem Royal Hospital, 1985.
• Stein G, Wilkinson G. Seminars in General Adult Psychiatry, 2nd Edition. The Royal
College of Psychiatrists, 2007.
• Hassan TB, MacNamara AF, Davy A, Bing A, Bodiwala GG. Managing patients with
deliberate self-harm who refuse treatment in the Accident and Emergency
Department.BMJ 1999:319;107-9.
• Wooley S. Jehovah’s Witnesses in the Emergency Department: What are their
rights? EMJ 2005;22:869-871
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