Consent to Emergency Medical Treatment – Can You Say ‘No’?

Refusing consent to emergency medical treatment

We rely on medical professionals to take action swiftly, especially when we need emergency medical treatment. Our lives are in their hands – but do we just have to lie there and take it?

It’s perhaps not surprising that over the years there have been a string of cases concerning consent to medical treatment. A recent example is Connolly v Croydon Health Services NHS Trust 2015.

Human rights and refusing consent

A patient’s right to withdraw consent to medical treatment is protected in international human rights law and is part of medical ethics. If medical treatment is given to a patient against their wishes that could result in a criminal offence.

In the Connolly case the court was asked to look at the issue of whether health professionals could continue to give emergency medical treatment even when the patient refuses consent.

When someone is unconscious it’s been fairly well established that provided the doctors act in the best interests of the patient they can give emergency medical treatment despite the fact they do not have the consent of the patient.

Withdrawing consent during treatment

What if the patient is conscious during the medical procedure and withdraws consent to treatment after it has begun?

In the Connolly case, Julie Connolly had consented to a diagnostic procedure called an angiogram. Complications arose and it was decided that she needed a more complex procedure. The outcome was that Mrs Connolly suffered severe pain and damage to a main artery during the treatment. Mrs Connolly later claimed there had been negligence and that she had only consented to the angiogram and not to the later emergency medical treatment.

So the court had to consider two questions regarding her emergency medical treatment:

1. Did Mrs Connolly have the mental capacity to withdraw her consent to the emergency medical treatment; and

2. Could her fundamental right to withdraw her consent be overridden by her doctors in this case?

The NHS provides guidance to its staff on the issue of consent in the Department of Health document Reference Guide to Consent for Examination or Treatment 2009.

It states that: “Where a person does object during treatment, it is good practice for the practitioner, if at all possible, to stop the procedure,..”

But it goes on to say: “If stopping the procedure at that point would genuinely put the life of the person at risk, the practitioner may be entitled to continue until that risk no longer applies”.

Where a patient gives consent to treatment, the patient must have given consent voluntarily and their consent must be ‘informed’ which means the patient must have been given all the relevant information about what the medical treatment involves, including the benefits and risks, the likely outcome and whether there are any reasonable alternatives.

In an emergency there is unlikely to be the time to go through all the details with the patient to obtain their express consent. Even if there is sufficient time could a patient whose life is at risk actually make the decision?

Mental capacity to refuse medical treatment

For consent to be valid the patient must also have the mental capacity to weigh up the information about the treatment and decide whether they are willing or not to consent to all the treatment being recommended.

Mrs Connolly argued that at the point when her artery was damaged she had withdrawn her consent to treatment.

The court heard evidence that Mrs Connolly had received analgesic drugs and sedatives at the time but she was conscious during the procedure. The court had to decide whether Mrs Connolly would have had mental capacity to reverse her decision and withdraw her consent to the treatment that was being applied.

The judge agreed with the defendants in this case that Mrs Connolly wouldn’t have had the necessary mental capacity to make a decision to withdraw her consent because of the effect of the drugs she’d been given. He also concluded that the consequence of stopping the emergency medical treatment to discuss it with Mrs Connolly would have been to put her at a high risk of death. It was therefore judged reasonable for her doctor to continue with the procedure without Mrs Connolly’s consent to emergency medical treatment.

So the answer to the question “do we have to lie there and take it?” is in most cases involving emergency medical treatment probably yes.

About the author: Rosamund Evans is a solicitor and registered trust and estate practitioner. Rosamund writes regularly on issues relating to mental capacity, health and disability.

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Image by Stuart Miles courtesy of Freedigitalphotos.net