Consent, Capacity &
The Mental Health Act
Consent
It is a basic rule at common law that consent must be obtained for medical examination, treatment or investigation. This is well established in Irish case law and ethical standards. The requirement for consent is also recognised in international and European human rights law and under the Irish Constitution.
For the consent to be valid, the adult patient must:
have received sufficient information in a comprehensible manner about the nature, purpose, benefits and risks of an intervention/treatment or research project.
not be acting under duress
have the capacity to make the particular decision.
A mentally competent patient (i.e. one with capacity) has an absolute right to refuse consent to medical treatment for any reason, rational or irrational, or for no reason at all even the decision may lead to his or her own death.
Medical treatment can be undertaken in an emergency, even if, through lack of capacity, no consent has been given, provided the treatment is necessary and does no more than is reasonably required in the best interest of the patient. However, treatment must not be given if the patient previously refused to give permission when they were competent and had capacity.
Types of Consent
Written
Verbal
Implied e.g. holding out an arm for blood sampling.
Capacity
A persons capacity may vary over time or a lack of capacity may be temporary. For example a person may lack capacity while they are intoxicated or suffering a physical or mental condition that cause confusion, drowsiness or a loss of consciousness.
An adult has capacity to make a decision (including a decision to refuse treatment) if he/she can:
Understand and believe the information relevant to the decision
Retain the information long enough to be able to make a decision
Is able weigh that information as part of the process of making a decision
Is able communicate their decision
Always seek senior advice if you are unsure if your patient has capacity.
Detention Under the Mental Health Act 2001
The Mental Health Act 2001 governs civil (non-criminal) involuntary psychiatric admission and treatment in Ireland.
The Mental Health Act has NO role when a patient is refusing medical treatment or when a patient is medically unwell and wants to leave the ED.
The Mental Health Act is ONLY applicable when a person is thought to be suffering from a mental disorder i.e. mental illness, severe dementia or a significant intellectual disability and is refusing psychiatric assessment or treatment and;
Because of this illness, disability or dementia there is a serious likelihood of the person concerned causing immediate and serious harm to themselves or others. Or,
(i) Because of the severity of the illness, disability or dementia , the judgement of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such an admission, and (ii) the reception, detention and treatment of the person in an approved centre would be likely to benefit the condition of that person to a material extent.
The involuntary admission procedure for adults in Ireland to an Approved Centre for the provision of in-patient treatment to people suffering from mental illness is essentially a 3 step process. This process involves a series of assessments which need to be recorded on a series of forms.
Step 1: Application for involuntary admission of an adult.
Step 2: Recommendation for involuntary admission of an adult. (Registered Medical Practitioner)
Step 3: The Admission order at the approved centre. (Consultant Psychiatrist)
Always seek senior advice if you are not familiar with the MHA. See the website of the Mental Health Commission www.mhcirl.ie for more information.
Detention Under Common Law
If a patient is medically unwell and is refusing medical treatment or wants to leave the ED you may need to detain them under Common Law if they DO NOT have capacity and if treatment is deemed to be in their Best Interests.
In order to be mentally competent (have capacity) they must understand, retain and believe the information which is material to the decision required especially as to the likely consequences of having or not having treatment. They then must weigh the information as part of a process for arriving at a decision.
Always seek senior medical advice if you are unsure if your patient has capacity.
References
National Consent Policy. HSE. V. 1.3. National Consent Advisory Group. June 2019.
RCEM Best Practice Guideline. The Mental Capacity Act in Emergency Medicine Practice. February 2017
https://www.mhcirl.ie/
This blog was written by Dr Deirdre Glynn and was last updated in August 2021