Consent and the Mental Capacity Act 2005.

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a. Bolam was the nemesis of Golam in “The Hobbit”.     False
b. Bolitho is a district of Johannesburg and of no relevance to this subject.     False
c. An intoxicated woman who gets into bed with a man is, de facto, giving consent to sex.   False
d. Capacity refers to a patient’s ability to consume alcoholic beverages.   False
e. Fraser competence has superseded Gillick competence. True  
f. Touching a patient without consent could constitute “battery”. True  
g. parents of  a mentally handicapped individual can consent to her sterilisation.   False
h. parental consent is required for a girl of 14 to have termination of pregnancy.   False
i. parental consent is not required for a girl of 14 to have emergency contraception. True  
j. Jehovah’s Witness parents can refuse blood transfusion for their children.   False
k. a mother-to-be can refuse consent to Caesarean section, even if it means the child will die or sustain serious damage. True  
l. The Paling Perspective Scale is a tool used in art to give depth of field to a painting.   False
m. The Paling Perspective Scale is a is a tool to measure the gulf between the magnitude of a task  and the perception of it by the individual carrying it out as exemplified by Huckleberry Finn's fence- painting endeavours and preparation for the MRCOG part 2 examination.   False
n. The Paling palette is a tool used in art for mixing oil paints to obtain unique hues.   False
o. The Paling palate is a a spectro-photometer used in vinology for detecting adulterated products   False


List of contents.

1.    abbreviations

2.    introduction

3    key facts for the DRCOG

4    expanded information for the MRCOG and to help facts stick for DRCOG candidates

a.  suggested reading

b.  key facts

Court of Protection

      court deputies

       independent mental capacity advocates and independent mental health advocates

      advance decisions

c.  Golam, Bolam and Bolitho

d.  types of consent

e.  components of consent

f.   the information necessary for informed consent

g.  Fraser and Gillick

h.  how is the adequacy of consent assessed?

i what to do when someone lacks capacity for consent

j.   who is responsible for ensuring that consent has been obtained?

k.   rights of unborn and newborn

l.   additional thoughts for MRCOG candidates



BMA:    British Medical Association.

COP:    Court of Protection.

DOH:    Department of Health.

GMC:    General Medical Council.

GP:      General Practitioner.

IMCA:   Independent Mental Capacity Advocate.

L&B:    Obstetrics and Gynaecology: An Evidence-Based Text for MRCOG (2nd edition). Luesley & Baker. 2010.

MCA:    Mental Capacity Act 2005.

NHS:    National Health Service.

RCOG:  Royal College of Obstetricians and Gynaecologists.

TOG:    The Obstetrician and Gynaecologist.

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This is a big and changing subject.

The GMC has issued advice and you ought to have read it:

Other august bodies such as the BMA and the RCOG have done the same.

You would not have a leg to stand on if ignorance led you into trouble.

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Key facts for the DRCOG:

Consent can be implied, verbal or written. Most exam questions will relate to written consent.

To give legal consent an individual must:

have the capacity to make a rational decision,

have been given the requisite information in an accessible form,

have been given enough time to digest the information,

have had her questions answered.

The legalities of competence to give consent are wrapped up in the Mental Capacity Act 2005. (MCA)

This became law in 2007.

The Court of Protection is a special court with the job of overseeing the workings of the MCA, deciding difficult cases and resolving disputes.

Bolam” derived from a legal case.

It allowed a doctor’s behaviour to be judged legal if a substantial body of his / her peers would have behaved in the same way.

Bolitho” came from another legal case and is superseding “Bolam”.

It decrees that it is for the courts to decide what is reasonable professional behaviour.

Reasonableness should not automatically derive from the views or practices of a “significant body” of professional peers.

Gillick competence” refers to the ability of an under-age child to give legal consent to contraception.

But tends now to include other areas of consent.

It derived from a legal case brought by Mrs. Gillick and led to a judgement by senior judges who stated that an under-age child could give consent so long as a number of conditions were met.

The lead judge was Lord Fraser, so we now tend to refer to “Fraser competence” and the “Fraser guidelines”.

The “Fraser guidelines” are five conditions that must be met before it is legal for a doctor to provide advice or treatment, including contraception and termination of pregnancy, to an under-age child without parental consent.

Axon” was a case relating to the provision of termination of pregnancy to the under-age child without parental involvement.

The judgement was that TOP could be done if the child was “competent”.

In the emergency situation and a patient who cannot give consent, you can provide such treatment as is needed for their immediate welfare, but nothing more.

For the patient who is not competent, the treating doctor can give consent for ordinary matters.

But for serious issues the court will need to give consent, unless someone has been authorised to give consent on the patient’s behalf.

People who can consent on your behalf if you do not have legal capacity include:

·           someone to whom you have given “powers of attorney”,

·           a “deputy” appointed by the Court of Protection.,

·           the doctors treating you but there are rules governing this.

We can dictate what treatments we might or might not have in the future to cover the nasty possibility that we might lose capacity.

This is an “advance decision”.

This term is now used in place of older terms such as “living will” and “advance directive”.

An example might be that you would not wish to be resuscitated if you had become so demented that you had lost capacity.

The one that tends to crop up in exams is the Jehovah’s Witness who declares that she will not have blood products under any circumstances.

If the advance decision has been properly set up, it is legally binding and you have to abide by it, whether you like it or not.

It has the same weight in law as having a competent person in front of you telling you what they do and do not consent to.

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Expanded information for the MRCOG and to help facts stick.

The above constitutes the “bare bones” of what you need to know.

But it is probably worth reading what’s below to get a better grasp of the subject and the above answers.

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Suggested reading.

I hope that this answer will give you all you need to know, but would suggest that you read the two TOG articles mentioned below.

I have put in the other references as they might be helpful if there are points that are still not clear.

Have a look at Consent Form 4.

This is the form that would be completed in most cases when a consultant authorises treatment for someone lacking legal capacity.

It gives a good idea of the background to consent. It is a sensible and practical document.

There is a good article by Nicholas and El Sayed in TOG. 2006; 8:39-44.

I note that Nicholas has, among others, the degree of Grad Dip(Law).

This shows in some of the language seeming to assume knowledge of legal terms, but it is still worth reading.

One sentence reads: “A valid consent…licenses what would otherwise be unlawful”, which, I think, is a nice explanation of the concept.

It so simplifies it as to make you think ‘why did I not think of that?’“

“Assault” and “battery” are often used interchangeably, but are different.

“Assault” means putting someone in fear of violence.

No violence needs to take place.

So, it would include threatening gestures or words.

“Battery” means unlawful contact, usually violent, but it could just be touching.

You don’t even need to make contact with flesh; inappropriate touching of someone’s clothing would qualify.

I don’t think the College will expect you to be expert on such distinctions.

Anyway, mostly the word "assault" is used to mean "battery" and "battery" is hardly used at all in this legal sense.

Nicholas and Nicholas discussed the Mental Capacity Act in TOG. 2010; 12:1:29-34.

You need to know the basics, so this is worth reading.

There is a useful article on the Fraser guidelines by Charlotte Fleming in TOG. 2006. Vol 8, Issue 4.

The GMC updated its advice in June 2000 with the document: "Consent: patients and doctors making decisions together".

If you practise in the UK, you have to read and know this advice.

It would be wise to have read it before the MRCOG exam.

The DOH produced a useful document in 2009: Reference guide to consent to examination or treatment“.

The BMA has provided advice and a toolkit.

The toolkit is a series of cards dealing with individual issues and is quite an easy read.

The College has published an overview of consent. "Clinical Governance Advice 6: Obtaining Valid Consent".

I had problems downloading it using Firefox.

But it worked OK with Internet Explorer.

The document is only 8 pages long. Read it and make out cards!

The College also publishes advice about consent in relation to a number of procedures.

The last time I  looked these included:


Caesarean section,

diagnostic hysteroscopy under GA,

diagnostic laparoscopy,


laparoscopic tubal occlusion

and vaginal surgery for prolapse repair.


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Key background facts.

Mental Capacity Act 2005.

The Mental Capacity Act gives:

·           the nuts and bolts of legal capacity; what is it? who can say you have not got it etc?

·           the legal background to how decisions can be taken for people who lack the capacity to do this themself,

·           it covers a load of issues about non-medical matters in addition to consent to treatment, the one that mainly interests us,

·           it extends “powers of attorney” to cover medical matters,

·           it empowers the Court of Protection to appoint a “deputy” to act for someone who lacks capacity and defines the limits to their powers.

·           it tells us how we can determine what will happen to us in the future if, at a later date, we have lost the capacity to make decisions: the “advance direction”,

·           it spells out the things that need to come to the court for authority which includes things like treatments that sterilise people who lack capacity.

It provides a legal framework for decision-making on behalf of people aged 16 or over who cannot make decisions themselves.

The court that oversees the functioning of the act is the Court of Protection.



Parents cannot withhold treatment for their offspring where failure to treat could lead to serious harm or death.

Usually a court order will be required to authorise treatment.

Other aspects of the MCA.

The Act states a lot of obvious stuff such as:

 everyone has to be assumed to have capacity until proven otherwise,

every possible step to confirm capacity must be taken to assist an individual to be able to provide consent before deciding that they lack capacity,

capacity is "decision-specific”. An individual of limited intellect may be able to consent to having blood taken but not to deciding between possible treatments with different balances of benefits and risks.

And so on.

An innovation is that the Act extends the power of attorney to medical matters.

You can arrange for someone to have “lasting power of attorney” enabling them to take decisions on your behalf in the event of you losing capacity.

You can already do this in relation to money and other matters, but the Act extends it to healthcare.

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Court of Protection.

The court that deals with these matters is known as the Court of Protection".

And the Mental Capacity Act is its only business.

This might be worth slipping into an MRCOG essay or viva for an extra mark.

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Court Deputies.

If a case is brought before the COP, the court would normally make a “one-off” decision relating to a particular treatment.

If further decisions may be needed, the court can appoint a “Deputy”.

The Deputy will have the power to make decisions on the patient’s behalf over all matters, with one exception:

they cannot refuse consent to life-sustaining treatment.

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Independent Mental Capacity Advocates ( IMCAs) & Independent Mental Health Advocates IMHAs.

I don't think you need to remember all the following detail - there is only going to be 1 mark at most!

In a viva you would mention that independent advocates can be of help.

In a roleplay, e.g. with a relative of someone you could ask if they know that advocacy services exist.

IMCAs were introduced by the MCA.

Local Authorities must appoint one if: .

a person lacks capacity,

faces decisions about treatment

and has no family or friend to provide support.

Their duties are to:

  1. support the patient and represent their views and interests to the person responsible for the decision about treatment or investigation,
  2. get the necessary information from the patient and medical records,
  3. get the views of the professionals involved,
  4. identify alternative options for treatment etc.,
  5. get another medical opinion, if appropriate,
  6. write a report which the person taking the decisions must consider.

A variety of companies provide the service.

In Manchester it is provided by  "Rethink Mental Illness", a national charity.

Their information about the service is here.

IMHAs are more restricted.

Their role is to help "qualifying" people with mental health problems who are facing serious medical decisions.

To qualify the person must:



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Advance decisions.

We have previously had “living wills”, documents you could write while having capacity to determine treatments you would wish not to have if you lost capacity.

For example, I would not wish resuscitation if I was deranged with Alzheimer’s.

“Living will” is not a particularly clear term as a "will" usually relates to who gets your property once you are dead.

The MCA has formalised our ability to make decisions now for use if we lose capacity in the future.

They are now known as “advance decisions”.

Properly set up, they have the same authority as a statement made by a competent person at the time of treatment.

For an advance decision to stand in law the following must apply:        

1.      the person must be 18 years or more,

2.      they must have the capacity to make the decision,

3.      the treatments that are being refused must be made clear,

4.      if the advance decision is about treatment that would keep them alive it must:

5.           be in writing

6.           be signed and witnessed

7.           it must state clearly that the decision applies even though life is at risk,

An advance decision can be revoked at any time, so long as the person is still competent.


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What is all this rubbish about Golam, Bolam and Bolitho?

Golam was a wonderful, riddle-obsessed creation of Tolkien in “The Hobbit”.

I read this to my children at bedtime and now that they are grown-up, they recall it with great pleasure.

Definitely one to read to your own children, probably from the age of 8 or 9.

“Bolam” used to be the standard test of whether you had behaved in a reasonable way.

The idea was that if a significant proportion of your medical peers would have behaved in the same way, then your actions were justified.

“Peers” means “equals”, so that if you are an SHO, you would be compared with other SHOs, not Consultants.

This meant that doctors were defining what was reasonable behaviour, which was open to criticism.

Like burglars defining theft for the purposes of the law.

In the Bolitho case, the judge took the view that it was for the court to decide what was reasonable behaviour, not the medical profession.

In other words, the court could dismiss the views and practices of this “substantial body of peers” as wrong.

“c” has nothing to do with the subject and is included to keep you lusty young chaps out of trouble.

If you are a bachelor on the prowl – a genre usually identifiable by the secretion of condoms about their persons, overgenerous perfumery and a plethora of ingratiating habits – my recommendation is that you carry consent forms for sexual intercourse.

These should be completed before the deed, signed by both parties and in duplicate; one copy for you, one for her.

 Probably best to get a witness to your signature and that of the lady and to her being competent to give consent.

As marriage does not imply consent to sexual activity in any form and at any time on the whim of one partner, it might be safest if you married men get documented consent before indulging in sexual contact.

Don’t even think of sneaking up on her and grabbing those bits of her anatomy that most appeal!


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Types of consent.

Implied consent.

Implied consent relates to situations in which the patient’s behaviour indicates consent to what is proposed.

For example, if a clinic appointment is sent to a patient and she duly attends, it can be assumed that she has given consent for basics like talking to her.

On arrival she might be told that a number of blood tests are routinely done.

If she rolls up her sleeve and offers her arm, you can reasonably infer consent.

Verbal consent.

You might say to a patient: “I’d like to take some blood from your arm”.

If she assents with an “OK, doctor”, then you have verbal consent.

Written consent.

Implied and verbal consent cover the basics of daily practice.

But as soon as you start dealing with anything major, especially if there is any risk to the patient or her baby, you need the legal backup of written consent.

Nowadays you are often using a standard form to make sure the legalities are covered.

We are talking about “informed” consent, so you have to make sure that the necessary information has been provided.

For example, the RCOG provides advice about key elements of consent for different procedures and it would be wise to know the main ones.[]=8.


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Consent has three main components:

            capacity -  the individual’s ability to make a rational decision,

            information - the provision of adequate, accessible information to enable a rational decision.

            communication – the individual must be able to let others know their decision.

   If they are unable to communicate the decision, they cannot give consent.

“Capacity” means the individual’s ability to give consent.

You need to be able to understand the information and its implications.

Your brain must be able to ingest and process the information provided about the proposed treatment and the other options: doing nothing or having a different treatment.

It must then be able to hang onto it.

(Did you see that terrible television programme a few years ago about the brilliant musician who had had his memory erased by encephalitis.

He could remember nothing of his past and any new information vanished within minutes.

It left him in a living Hell.

Can you imagine what it would be like?)

You must then be able to process the information and weigh up:

the pros and cons of the proposed treatment,

the other possible treatments and having no treatment,

so as to reach a decision about what is the best action.

This assumes that you have been given enough relevant and accurate information for a decision to be taken, of which more below.

Clearly, seriously impaired intellect, diminished consciousness, immaturity, mental illness, mind-bending drugs, pain etc. could negate competence.

Is consent given in the throes of labour ever valid?

The decision she reaches does not have to be what you consider the most rational or best-judged.

A woman diagnosed in early pregnancy with cancer may elect to have no treatment until after the pregnancy to prevent risk to the baby.

You might deem this irrational or unwise, but it would still be a perfectly valid decision on her part.

Remember, too, the possibility of a Svengali  in the background controlling her decision-taking.

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What information do you need to provide and how should you provide it?

GMC advice.

This used to be assessed under “Bolam”, but what your buddies might think sufficient is no longer OK.

Now it is any information that could influence the thought processes of a reasonable patient in coming to a decision about treatment.

You also have to consider how the information is best given.

If you have worked in the UK, you should have had training in obtaining consent, especially during induction programmes.

You should have read the GMC document.

I have extracted the key sections and you will find them below.

It is worth reading them through, though they obviously give far more detail than you need for the DRCOG.

I have left the paragraph numbering from the original GMC document, so you know where to find the information.

They read as follows:

“4. Patients have a right to information about their condition and the treatment options available to them.

The amount of information you give each patient will vary, according to factors such as the nature of the condition, the complexity of the treatment, the risks associated with the treatment or procedure, and the patient's own wishes.

For example, patients may need more information to make an informed decision about a procedure which carries a high risk of failure or adverse side effects; or about an investigation for a condition which, if present, could have serious implications for the patient's employment, social or personal life.

5. The information which patients want or ought to know, before deciding whether to consent to treatment or an investigation, may include:

13. Obtaining informed consent cannot be an isolated event.

It involves a continuing dialogue between you and your patients which keeps them abreast of changes in their condition and the treatment or investigation you propose.

Whenever possible, you should discuss treatment options at a time when the patient is best able to understand and retain the information.

To be sure that your patient understands, you should give clear explanations and give the patient time to ask questions. In particular, you should:

RCOG advice.

As noted in the “Suggested reading” section, the RCOG has issued detailed guidance relating to individual procedures.

MRCOG candidates should have read these.[]=8.

Explaining risk.

People get all screwed up about what is common, very common, rare etc.

The RCOG has put definitions in "Obtaining Valid Consent", number 6 in its Clinical Governance Advice series.

It lists them as follows:


 Level of risk


 very common

1 in 1 to         1 in 100

someone from your family


1 in 10 to       1 in 100

someone from your street


1 in 100 to     1 in 1,000

someone from a village


1 in 1,000 to  1 in 10, 000

someone from a small town

 very rare

less than        1 in 10,000

someone from a large town

There are problems with this.

I think there is a "typo" in the first row describing "very common".

The numbers overlap with the next row, "common".

I think the numbers in the first row should be 1 in 1 to 1 in 10.

There are not many families nowadays with 100 members!

It is also unfortunate that “common” is defined in the context of family.

To say someone is “common” is usually meant to be dismissive, even insulting.

It means having the attitudes, ambitions, manners etc. of the lowest of human beings.

If you tried to explain to someone that “common” meant “like someone from your family” the result could be a bloody nose.

Especially if the person was truly “common”.

I suspect too that if someone is incapable of understanding 1 in 100, they may not suddenly see the light when told it is like someone from your street.

They may live on a street that stretches for miles.

By all means use them for the exam, but I don't think they are much use.

Probably better to say: "if we had a thousand people, all exactly the same, one would have .....".

This, of course presumes that the individual has some concept of what a thousand is.

I suspect that many would not.

There are a number of other systems for trying to explain the chance of an untoward event and its consequences.

I describe them so that you know that they exist, but I don't think you need anything more than that.

The Parliamentary and Health Service Ombudsman has contributed to the discussion.

Consent in Cardiac Surgery: A Good Practice Guide to Agreeing and Recording Consent.mLondon: Parliamentary and Health Service Ombudsman; 2005.

Although it derives from cardiac surgery, some of it is applicable generally.

The overall grading is:

 • Improbable:      Unlikely to happen and only in exceptional circumstances.
• Highly unlikely:  Occurs annually in the UK.
• Unlikely:             Has occurred in the previous 3–5 years in the unit or surgeon’s practice
• Potential:           Occurs annually in the unit or surgeon’s practice
• Possible:           Occurs weekly / monthly in the unit or surgeon’s practice.

I don't think this is very practical.

Who knows how often an event occurs annually in the UK?

And "potential" and "possible" are usually taken as synonyms.

Nowadays it is common for a unit to have 10 or more consultants.

Therefore there would be a 10-fold or more greater chance of an event to occur in a unit than in an individual's practice.

This system then goes on to grade events by severity.

This ranges from "catastrophic" (causing death or permanent disability) to "low", with transient discomfort and no extra time in hospital.

The really good bit comes when these are brought together in a chart that is meant to shed light on the composite risk.





• Catastrophic Permanent disability or death
• Severe Marked reduction in quality of life which is permanent or which has a recovery period
of more than 12 months, and/or more than ten days extra hospital stay
• Moderate Temporary pain, disability and/or reduction in quality of life with a recovery within
1–12 months and/or up to ten days extra hospital stay, extra-operative intervention required
• Slight Temporary discomfort or loss of function,less than three days extra hospital stay, recovery within one month
• Low Transient discomfort, no extra hospital stay

Paling has two tools bearing his name: the Paling Palette and the Paling Perspective Scale.described two tools using visual schemes for depicting risk.

Paling J. Strategies to help patients understand risks. BMJ

I think it is worth taking time to read this article.

It makes a number of simple, sensible points that would be useful in real practice.

The way doctors communicate risk can affect a
patient’s perception of risks
Supplement verbal explanations with numerical
Use absolute numbers; do not use relative risks or
percentage improvements
State the odds from a positive and negative
perspective and use a consistent denominator
Use visual aids wherever possible, to maximise
Use of simple visual aids can also improve the
doctor-patient relationship
Make sure the patient’s informed consent is based
on information—not just data

There are also a couple of 'palettes' on the Paling website.

This is a commercial website selling his book, but the 'palette' with a thousand women is a good tool for expressing risk, when the denominator can be 1,000.

The Paling Perspective Scale11,12 is useful for displaying risks covering different magnitudes. This scale uses variable denominator
data in dealing with rare events, for example, 1 in 10 000 or 1 in 1 000 000.

11 Paling J. Strategies to help patients understand risks. BMJ 2003;327:745–8.
12 Stallings SP, Paling JE. New tool for presenting risk in obstetrics and gynecology. Obstet Gynecol 2001;98:345–9.

Royal College of Anaesthetists together with the Association of Anaesthetists of Great Britain and Ireland.16 This simple scale
illustrates risks in terms of whether they are very common,common,uncommon,rare or very rare. Side effects and complications associated withgeneral or regional anaesthesia are expressed as rates per 10, 100, 1000, 10 000 and 100 000. They conclude that deaths caused by anaesthesia are very rare: there are probably about 5 deaths for every 1 000 000 anaesthetics in the UK. Interestingly, a risk of 1 in 1 000 000 is said to represent an inconsequential risk.12

16 The Royal College of Anaesthetists and The Association of Anaesthetists of Great Britain and Ireland. You and your anaesthetic: information to help patients prepare for an anaesthetic. London: Royal College of Anaesthetists; 2003 [].

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Fraser & Gillick.

In the early 1980s the DOH issued a circular stating that a doctor could provide contraceptive advice or treatment to a girl under the age of 16 without parental consent.

Victoria Gillick, a larger-than-life character, usually denigrated in the media as “mother of 10, Roman Catholic and ‘pro-Life’ activist”, though I can’t see what is inherently bad in any of these characteristics, sought assurances from her local health authority (West Norfolk and Wisbech) that no one would prescribe contraceptive advice or treatment for her daughters without her consent.

The Health Authority declined to provide assurances, so Mrs Gillick took them to court.

She argued that a doctor providing contraception to an under-age girl would be “aiding and abetting” or acting as an accessory to an unlawful act – sexual intercourse with a minor.

As such, the doctor would be acting illegally and the circular was also illegal.

The local court found in favour of the Health Authority.

Mrs Gillick took the case to the Court of Appeal, which found in her favour, stating that a child under the age of 16 could not give consent.

The Department appealed to the House of Lords in 1985.

It decided in favour of the Department, by a majority of the three judges who heard the case.

The spokesman for the judges was Lord Fraser.

Their view was that a child under the age of 16 could be competent to give consent.

From this derived the concept of “Gillick competence” i.e. the ability of an under-age child to give valid consent.

The logical follow-on was their conclusion that a doctor can provide contraceptive advice and treatment legally to a person under the age of 16 if all of the following apply:

1.      the young person understands the advice being given,

2.      the young person cannot be convinced to involve parents / carers or allow the medical practitioner to do so on their behalf,

3.      it is likely that the young person will begin or continue having intercourse with or without treatment / contraception,

4.      unless he or she receives treatment / contraception their physical or mental health (or both) is likely to suffer,

5.      the young person's best interests require contraceptive advice, treatment or supplies to be given without parental consent.

These five conditions became known as the “Fraser Guidelines”.

We used to talk of a child being “Gillick competent”.

It has become fashionable to talk of adhering to the “Fraser Guidelines” instead.

So, we have the child who is "Fraser competent" or "Fraser rules competent" or "Fraser Guidelines competent".

I suspect that this is because the many people who dislike Mrs Gillick and her opinions prefer not to utter her name.

But any of these terms will convey the meaning in the exam.

In 1990, the Access to Health Records Act stated that a “Gillick competent” child could deny parental access to their health records.

If you ever get caught up in this kind of stuff, you should be in touch with your defence union from the outset.

Sue Axon, from Wythenshawe in Manchester, went to court in 2005 in a case reminiscent of Gillick, but relating to the ability of doctors to advise about or provide abortion services to under-age girls without the knowledge of the parents.

She readily admitted to having had an abortion some decades before that had left her with a load of regrets and depression.

She had two teenage daughters.

Neither was pregnant when the case started; the elder was pregnant at the age of 16, but continuing with the pregnancy, by the time the case came to the High Court in 2006.

Mrs Axon lost the case and decided not to pursue it further.

This is likely to determine the law in relation to abortion services and the under-age girl for the foreseeable future.

Is there an lower-age limit to Fraser competence?

Eliza, my granddaughter, is a very bright girl who will tell you she is 3 and 3/4.

If she had appendicitis and needed surgery, she is mature enough that she would understand the discussion of the need for surgery.

She would be able to take a decision.

She can read, but would need help with the more difficult language of the consent form.

And she would have no problem with signing her name.

But would it be reasonable to allow someone who is little more than a baby to consent for surgery?

Interestingly, at the age of 11, Jonathan my eldest son, refused treatment for a broken arm.

And the hospital staff paid heed to what he said.

He had fallen playing football at school and has been taken to A&E with a broken arm.

He was seen by the on-call consultant and the need for GA to reduce the fracture and set it in plaster was explained.

He said he was not to have any treatment until the consultant had spoken to me.

As Fate will have its little pranks, it was the day I did clinics at a small hospital some 20 miles from my base hospital, and it was going to take me some time to get there.

The consultant phoned to tell me that they did not think they should go ahead with the child refusing treatment.

I spoke to Jonathan and found that he wanted my reassurance that the surgeon and anaesthetist were competent.

I said that I know both of them and that he was in good hands.

I told the consultant that he would now agree and that I was happy for him to sign the consent form and get on with it - my wife was out of town for the day.

On reflection I realised that this was my fault - he must have heard me say of a colleague: "he is a fool and I would not let him operate on my cat".

Something the GMC says we should not do!

Beware what little ears pick up.

I was impressed that he had the sang-froid to refuse treatment and that they respected his wishes.

Mind you, a few years later he won a scholarship to read medicine at Oxford University and among subsequent achievements was the FRCS Gold Medal.

 I guess they appreciated that they were dealing with a slightly unusual 11-year-old.

But the bottom line to this long-winded detour is that I cannot find a lower-age limit for Fraser competence.

An important fact is that the child under 13 cannot give consent to sexual activity.

This is laid down in the Sexual Offences Act 2003.

Any sexual contact with a child under 13 is always sexual assault.

Sexual intercourse is always rape.


The MCA says that children of 13 years or less, however bright, are incapable of giving consent.

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How is adequacy of consent assessed?

I think the usual answer is that there is no assessment, not by the patient or by the unit.

As far as I know, there is not yet a CNST requirement to audit consent.

But if they read this they'll probably think it is a good idea!

And I don't think any units regularly consider the matter.

If units gave consent the importance it deserves it would cause real headaches.

Starting with the need to train those who obtain consent.

There is evidence that many doctors have had no training and others only had it as undergraduates.

There is a very good article by Catherine Quarini on the ethical problems encountered by junior doctors, including obtaining consent, here.

An article full of remarkable insights by a young doctor that you would do well to read.

It also casts light on real issues about confidentiality in day-to-day practice.

Then there would be issues about adequate time provision in clinics, good patient information leaflets etc.

It is a human instinct to ignore problems that seem to have endless potential ramifications.

In general this is only going to be an issue if there is a complaint that consent was inadequate.

I would guess that this would usually be a claim that important information about risk had been omitted or played down.

Or it could be part of a legal case.

Chapter 2 of L& B was written by Fiona Reid and Tony Smith from St. Mary's Hospital in Manchester.

I don't know Fiona, but Tony is a guy with a formidably logical and organised approach to practice.

The make an interesting statement: "Increasingly, the adequacy of consent is assessed legally by the concept of ‘material risk’".

In this setting "material" is not the stuff your shirt is made of.

It is an adjective meaning important or significant.

They go on to define 'material risk' as a risk that a reasonalble person would attach significance to as a patient or one that the doctor should realise would be seen as significant by this inidividual patient.

It is legalistic, illustrating the point that this stuff is most likely to arise in legal or complaint settings.

I can't see this being more than one line in an essay or 1 mark in a viva, so I'll not dwell on if further.

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What to do when someone lacks the capacity to give consent.

This could get very technical, but we only need the basics.

In the exam it is likely that the problem would be someone with severe learning difficulty or Alzheimer's.

If there is doubt about whether they have capacity or not, get an expert opinion.

This should come from a consultant psychiatrist or psychologist with a background in dealing with such assessments.

A complication is that capacity is not “all or nothing”.

A handicapped individual might be able to consent to being examined or to having blood tests.

But not be able to understand the complexities of the pros and cons of different treatment options.

If capacity is lacking, special arrangements are necessary to authorise investigations or treatment.

Relatives and carers are not able to give consent.

But the professional in charge can use Consent Form 4 from the DOH to authorise the investigation or treatment.

Most of us will never have to deal with this problem, or at most will do so once or twice in a career.

In most cases you would start by getting advice from the Trust's legal department.

The crucial thing would be whether you could give consent using consent form 4 or should the matter go to the COP.

If you are giving consent, there are a number of basics you must do.

You must act only in the best interest of the patient.

“Best interest” should be added to your mental list of useful “buzz words” for essays and vivas.

You can’t provide treatment to make life easier for the carers or because it seems a good idea for society at large.

You would consult relatives, carers etc.

And the GP, who will be likely to know the woman and her family.

Oddly enough, I did not see the GP mentioned in anything I read on the subject.

You would get a second opinion from a colleague.

This would be a request for their independent assessment and views on the best treatment.

It would not be you asking them to "rubber stamp" what you had already decided.

You would consider arranging an IMCA if the patient had no one else, other than NHS staff, to act on their behalf.

Then you could sign the form and get on with whatever was planned.

But only after making detailed notes of everything that had been done and why you believe the proposed course of action is the correct one and in the patient’s best interest.

There are a number of serious situations that must be referred to the COP for its judgement.

If it was felt that a seriously handicapped young woman would be incapable of rearing a child, the parents might wish her to be sterilised.

Persuasive arguments could be made that this would be in her best interest.

The parents might be prepared to allow her to have a sexual relationship with the knowledge that she would not become pregnant.

But they might not if only less reliable forms of contraception were available etc., etc.

Of course, with depot contraception, implants, IUDs etc., this argument would be flawed.

But the court would insist that only it should take so major a decision as it views removal of fertility as extremely serious.

Any decision of this kind would have to come from the COP itself and it would be illegal for you to use Consent Form 4.

Hysterectomy to deal with menorrhagia would be OK despite the fact that it would remove her fertility.

But you need to be able to demonstrate that:

you were acting in her best interest,

that it was not being done to sterilise her,

that this was the best treatment etc.

Other issues that must go to the COP are procedures done for another’s benefit: e.g. removal of bone marrow or stem cells for transplant.

The legalities are wrapped up in the Mental Capacity Act 2005.

It extends powers of attorney to cover medical matters.

So, if I anticipated that I might lack competence in the future, I could authorise someone to have powers of attorney.

 The attorney must act entirely in my best interest.

If the attorney were my son, he would not be allowed to decide to refuse treatment because I was demented and he wanted to get his hands on my fortune.

And he would not be able to overrule any "advance decision" to refuse treatment.

"Advance decisions" used to be known as "Living Wills".

A written "advance decision" cannot be overruled.

For example, I might decide that I would not wish resuscitation under certain circumstances, such as advanced Alzheimer's.

Don't get bogged down. It is not a legal exam.

In most cases all you would need to say is that you had:

acted in the patient's best interest,

been certain that the investigation or treatment was indicated and the best available,

consulted appropriately: family, carers, GP etc.,

obtained a second opinion confirming the proposed investigation or treatment,

consulted the legal department of the Trust

and used Consent Form 4.

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Who is responsible for ensuring that consent has been obtained?

The person carrying out the procedure or operation.

The task of obtaining consent is often delegated to junior doctors.

This raises interesting questions about the extent of the responsibility of the person carrying out the procedure to know the adequacy of the training and competence of the junior doctor.

But I don't think this will be a matter for the part 2.

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Rights of the unborn & newborn: parental refusal to give permission to treatment.

Parental refusal of consent for treatment of the newborn is dealt with in the Department of Health document: “Seeking Consent. Working with children”, page 22.

“Clinicians and parents will not always agree on what is best for a child.

Usually, if parents refuse treatment for their child, then treatment will not go ahead.

However, if you and your colleagues believe that it is crucial for the child to have the treatment in question (for example if the child would die, or suffer serious permanent injury without it), then the courts can be asked to decide what is in the child’s best interests.

Applications to court can be made at short notice if necessary. If the emergency is such that there is no time to apply to court, any doubts should be resolved in favour of the preservation of life.”

“k” is true because the child has limited rights until it is born.

In particular, a mother cannot be made to put herself at risk or through unpleasant or unwanted procedures just for the benefit of the child.

Once a child is born, it acquires the same rights as others.

Something of a parallel with the refusal of the mother to undergo Caesarean section would be the refusal of a mother to provide a bone marrow donation to a child after birth.


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For the MRCOG:

Remember the lateral issues: training in obtaining consent, audit, risk management, CNST.


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