Adults withholding consent
- Competent adults have an absolute right to withhold their consent to treatment for any reason, or for no reason at all.
- This is the case even if their refusal appears unreasonable and not in their own best interests.
The difficulties caused by restricted consent don't alter your legal and ethical responsibilities towards the patient, or their right to receive reasonable and proper care.
When obtaining consent, take into account the patient's religious, cultural and any other beliefs which might lead them to refuse treatment or specific aspects of treatment, such as a blood transfusion.
Refusing one aspect of treatment does not give the patient the right to alternative treatment not normally available to other patients.
The treatment plan
When a patient refuses to consent to one element of the treatment plan and this threatens the outcome of other elements, you must explain the consequences of their decision.
The original treatment plan may have to be revised or abandoned if the patient's wishes mean it's no longer appropriate and in their best interest.
Be confident that you know which aspects of treatment the patient has and has not agreed to. Make sure to confirm at each appointment that the patient is happy to proceed with treatment.
When can consent be withdrawn?
Consent may be withdrawn at any time, even during treatment. You should comply with any request to stop treatment immediately, unless the patient's capacity to make a decision is impaired at that moment, to the extent that they are no longer competent to consent to treatment.
You should still take the request into account in assessing the patient's best interests, and weigh up whether it is in the patient's best interest to stop treatment. This includes whether the harm caused by stopping treatment outweighs the risk of continuing.
If stopping treatment would be dangerous to the patient and they're unable to appreciate this, it may be possible to continue under the protection of the Mental Capacity Act 2005 in England and Wales and/or the common law. The relevant legislation in Scotland is the Adults with Incapacity (Scotland) Act 2000 and in Northern Ireland, the Mental Capacity Act (Northern Ireland) 2016.
When consent to treat a child is refused
Occasionally, a Gillick-competent child or an adult with parental authority may refuse to consent or authorise treatment.
Children aged 16 and 17, or a Gillick-competent child, do not have an absolute right to refuse treatment. Their refusal will not override authorisation by someone who has parental responsibility for the child, or the court. In Scotland this applies only to children aged 15 and under, as 16 is the age of legal capacity in Scotland.
In deciding whether or not to treat a child in such circumstances, your assessment of whether it is in the child's best interests to treat against their wishes should include:
- their age and emotional development
- the nature and consequences to the child of proposed treatment
- the effect on the child of imposing treatment against their wishes
- the nature of the condition and the consequences to the child if untreated.
It may be unlawful for a dental professional to treat a child who isn't considered Gillick-competent against the wishes of a parent or guardian.
Where parents' wishes conflict with reasonable clinical practice and are not in the best interests of a child, you should not proceed with treatment. A second opinion is strongly advised, and you may need to make an application to the court.
It's important to consider all significant factors when assessing a child's best interests, including the appropriateness and availability of alternative measures.
If failure to treat immediately would result in death or permanent injury, you may conclude that treatment is justified and in the child's best interests, in spite of a refusal to consent. You should consider the possibility of obtaining a court order.
An application can be made for a specific issue order to carry out treatment without parental authority in England and Wales under Section 8 (1) of the Children Act 1989, under Section 11 of the Children (Scotland) Act 1995 or an Article 8 order of the Children (Northern Ireland) Order 1995. Generally, a court asked to override parental authority will proceed cautiously. Contact the DDU if you find yourself in this situation.
See our guide to consent and young patients for more information.
This page was correct at publication on 04/10/2021. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.