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Consent guidance: Endnotes

1. Testing of healthy or asymptomatic people to detect genetic predispositions or early signs of debilitating or life-threatening conditions

2. Mental health laws across the UK set out the circumstances in which an individual may be compulsorily assessed and treated for a mental disorder, without their consent. See the legal annex for more information about the legislation across the UK.

3. See paragraphs 62-63 and the legal annex for an overview of the relevant legislation.

4. The patient should be told how the proposed treatment differs from the usual methods, why it is being offered, and if there are any additional risks or uncertainties. If you are considering prescribing unlicensed medicines or medicines for use off-label, you must follow the GMC's prescribing guidance.

5. A patient has capacity if they can understand, retain, use and weigh up the information needed to make a decision, and can communicate their wishes – see paragraphs 71-74 on assessing capacity. If your patient is under 18 you must follow the guidance in paragraphs 54-56 and the GMC’s guidance, 0-18 years: guidance for all doctors. In certain circumstances, a patient with capacity can be treated without their consent for a mental disorder, subject to the provisions of relevant mental health legislation – see the legal annex for more information about legislation across the UK.

6. Following the guidance in paragraphs 26-33 of Confidentiality: good practice in handling patient information (2017)

7. See also paragraph 17 of Leadership and management for all doctors and the explanatory guidance Accountability in Multi-disciplinary and Multi-Agency Mental Health Teams for more guidance on steps doctors can take to clarify responsibility and lines of accountability.

8. See Explaining the risks and benefits of treatment options, Royal College of Physicians Patient and Carer Involvement Steering Group

9. An adverse outcome resulting in death, permanent or long-term physical disability or disfigurement, medium or long-term pain, or admission to hospital; or other outcomes with a long-term or permanent effect on a patient's employment, social or personal life.

10. Note for pathologists and radiologists: there may be times when uncertainty about a diagnosis can only be resolved by investigations which were not specifically ordered as part of the original request for testing. If these investigations appear to fall outside the scope of the original consent given by the patient, or there are particular sensitivities around the condition for which the pathologist or radiologist wishes to test, they must contact the treating doctor and establish whether further discussion with, and consent from, the patient is necessary before proceeding.

11. If the patient has a mental disorder, you should note the exceptions in the Mental Health Act 2003 (as amended by the Mental Health Act 2006), the Mental Health (NI) Order 1986, and the Mental Health (Care and Treatment) (Scotland) Act 2003. They allow compulsory treatment for mental disorder in certain circumstances, without consent, even if the patient has capacity. See the legal annex for more information.

12. The Mental Capacity Act 2005 requires advance decisions to refuse life-sustaining treatment to be in writing. Advance decisions to refuse other types of treatment may be written or verbal but, if verbal, they should be recorded in a person’s healthcare record (see Mental Capacity Act 2005 Code of Practice, chapter 9). It may be helpful under the provisions of the Adults with Incapacity (Scotland) Act, for a written record to be made of a person’s advance decision to refuse medical treatment (see Code of Practice for those authorised to carry out medical treatment or research under Part 5 of the Act, chapter 2).

13. Individuals with powers of attorney that cover health and welfare decisions (England, Wales and Scotland), court-appointed deputies (England and Wales) or guardians with welfare powers (Scotland) can, in certain circumstances, make decisions on behalf of a person who does not have capacity. See the legal annex for more information.

14. In Northern Ireland, there is currently no legal provision for someone else to consent to treatment on behalf of patients without capacity.

15. If you are treating a patient who lacks capacity and who also has a mental disorder, you should be aware of how the mental health legislation across the UK interacts with the law on mental capacity. See the other sources of information at the end of this guidance.

16. See chapter 2 of the Code of Practice for persons authorised to carry out medical treatment or research under Part 5 of the Adults with Incapacity (Scotland) Act 2000, or Chapter 9 of the Mental Capacity Act 2005 Code of Practice.

17. Welfare attorneys and court-appointed guardians (Scotland), holders of lasting powers of attorney and court-appointed deputies (England and Wales).

18. Independent Mental Capacity Advocates in England and Wales.

19. In England and in Wales, if you are proposing serious medical treatment (see paragraphs 10.42 - 10.50 of the Mental Capacity Act 2005 Code of Practice) and there is nobody other than paid staff who can represent the views of a patient who lacks the capacity to consent to that serious medical treatment, and that treatment is provided or funded by the NHS, an Independent Mental Capacity Advocate must be instructed to represent and support the patient.

20. See Chapter 3 of the Code of Practice for persons authorised to carry out medical treatment or research under Part 5 of the Adults with Incapacity (Scotland) Act 2000, or Chapter 15 of the Mental Capacity Act 2005 Code of Practice.

21. Paragraph 26 of Good medical practice says that doctors must offer assistance in an emergency, wherever it arises, taking account of their own safety, their competence and the availability of other options for care.

22. The removal of tissue from a person as part of their diagnosis or treatment does not fall within the scope of the Act and is covered by the usual legal and ethical requirements for consent to treatment.

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