Mental Capacity Act

Introduction
The NMC (2008) state nurses must ensure they gain a patient's consent before giving any treatment
or care. This essay will explore the legal and ethical dilemmas associated with consent within current
nursing practice. The RCN (2008) defines consent as: 'an ongoing agreement by a person to receive
treatment, undergo procedures or participate in research, after risks, benefits and alternatives have
been adequately explained to them'. Since nurses were first regulated in 1916, the continual
introduction of new legislation, medical developments and people's expectations have influenced the
way in which they practice (Whitcher 2008). In compliance with the NMC Code of Conduct (2008)
nurses must act in the best interests of patients ensuring their actions or omissions do not harm
patients, known as non-maleficence and do good for patients wherever possible, known as
beneficence (Hinchcliffe, Norman and Schober 2003). There is no single act of parliament which
relates to consent; in response to previous case law, common law sets a precedence to be followed
in future cases. English Law assumes unless it is proved otherwise everyone over the age of 18 has
the capacity to make their own decision about whether to consent to or refuse treatment (Dimond
2005). If a nurse treats a patient without first gaining consent, in common law they may be accused
of a civil or criminal offence of battery (Whitcher 2008). Consent is usually described as implied or
informed. This can be verbal, which is usual in most cases for nursing activities or written for more
complex procedures, such as surgery (Dimond 2005). A patient could imply that they consent to
treatment by holding up their arm for a blood pressure test. However, the nurse should still inform
the patient what they are doing, check their understanding and ask for consent (Spouse, Cook and
Cox 2008). For a more complex procedure the patient will need appropriate information in order to
make an informed decision (Spouse et al 2008) which should include; any benefits, alternatives
available, risks involved and what may happen if consent is not given (DOH 2001). In the case of
Chatterton V Gerson (1981) the risks were not communicated to the patient who received a pain
controlling injection which left her with a numb leg. It was established that if she had been informed
of the risks involved she would not have given consent (Whitcher 2008). Nurses should ensure
details are accurately recorded to demonstrate compliance with legal requirements and that the
patients' wishes have been met (NMC 2008).