This Guidance does not change what you must do under the law.

You must respect the rights of patients to be fully involved in decisions about their care.²³⁸

If the patient has the capacity to consent, you must obtain their consent before a physical examination, starting treatment or helping them with their eye care, for example putting in drops or contact lenses.^{239, 240, 241, 242, 243}

Patients can give consent orally or in writing, or may imply consent by their behaviour, such as resting their chin on the chin rest after you have explained the procedure. However, acquiescence when the patient does not know what the examination or treatment entails is not consent.

You should use your professional judgement to decide what type of consent is required. As most of the tests conducted during a routine eye examination are safe and non-invasive, implied consent would normally be sufficient for these. However, for more invasive tests, such as drop instillation, contact lens fitting or applanation tonometry you should obtain explicit consent from the patient.

You should get written consent from a patient if:

1. the investigation or treatment is complex or involves significant risks
2. there may be significant consequences for the patient’s employment, or social or personal life
3. providing clinical care is not the primary purpose of the investigation or treatment
4. the treatment is part of a research programme or is an innovative treatment designed specifically for the patient’s benefit.

You are responsible for ensuring the patient has given valid consent. You may delegate this to another person only if you are sure they:

1. are suitably trained and qualified
2. have sufficient knowledge of the proposed examination or treatment
3. understand the risks involved
4. are able to provide clear and accurate information in response to the patient's questions.

If you delegate the task of seeking patient consent but carry out the subsequent examination or treatment you must be able to determine:

1. whether the patient had the capacity to make the decision to proceed²⁴⁴ 
2. what steps to take if the patient lacked capacity to make that decision.

In order for the consent to be valid, the patient must:

1. have the capacity to consent
2. be informed about the procedure
3. understand the nature and purpose of the procedure.

If you misrepresent the elements in paragraphs C32 b or C32 c the patient’s consent will be invalid.

You should provide information to the patient in a balanced way and explain your reasons for any particular course of action that you recommend.

You must ‘take reasonable care’ to make sure that the patient has understood any material risks involved in any treatment or procedure, and of any reasonable alternatives. What constitutes a material risk will depend both on what a reasonable person would consider to be significant, as well as what is significant to your particular patient.^{245, 246} Failure to do this may mean you have breached your duty of care and make you liable in negligence if the patient suffers harm as a result of the treatment. You should not withhold any information necessary for the patient to make a decision, unless the patient specifically asks not to have the information. You should keep a record of any discussions. 

You should find out what information the patient wants, as well as telling them what you think they need to know. What patients might want to know includes:

1. the options available: risks and benefits
2. which option you feel is the most appropriate for them and why
3. the cost of various options

If a carer or relative asks you to withhold information from the patient, you should not do so, unless you feel that giving the patient the information would cause serious harm. ‘Serious harm’ means more than the patient becoming upset or refusing treatment. If you withhold information from the patient you must record the reason in the patient notes.

You should not put pressure on the patient to accept your recommendation.

You should give patients with additional needs the time and support to make a decision.

The patient may withhold their consent for any part of the consultation.

It may constitute battery if you touch a patient without their consent.

You should always seek legal advice if you have any doubt about the legal validity of the examination or treatment.

Gaining consent from a patient is not a one-off event and is part of the ongoing liaison between you and the patient. You should be alert to unspoken signals which could indicate a patient’s lack of understanding, discomfort, or lack of consent.²⁴⁷ A patient who is capable of giving consent may withdraw it at any time, including during a procedure. If your patient does object during a procedure you should:

1. stop the procedure, if possible
2. find out the patient’s concerns
3. establish if it is an expression of anxiety rather than withdrawal of consent
4. give reassurance
5. explain the consequences of not completing the procedure.

An adult patient with the capacity to consent has the right to refuse any treatment, even if you feel that their decision is unwise or it would lead to them (but no one else) suffering serious harm. If you believe that there is a risk of serious harm to the patient or others due to their decision to refuse a treatment or service, such as referral, you must raise this issue with appropriate healthcare colleagues or people involved in the patient’s care.²⁴⁸ However, you must respect the patient’s confidence when you do this.²⁴⁹ This can be done by discussing the case in general without revealing details which may identify the patient. See section on Confidentiality.

Being able to meet a patient’s individual needs for information to ensure a valid consent depends, in part, on the time and resources available to you and your colleagues in the organisations and systems where you work. Where there are pressures on your time, or resources are limited, you should consider:

1. the role other members of the team might play in providing information, with appropriate training and supervision
2. what other sources of information and support are available to the patient, such as trusted patient information leaflets, or support groups for people with specific conditions
3. use of technology, educational videos, and interactive online resources.

A patient’s capacity may vary from one day to the next, or depend on the decision they are being asked to make. You should not assume that just because the patient does not have capacity on one occasion, they lack the capacity to make all decisions.

Making decisions about treatment and care for patients who lack capacity is governed in:

1. England and Wales by the Mental Capacity Act 2005. The Act is supported by a Code of Practice for healthcare workers which you should refer to.²⁵⁰  A person lacks capacity if, at the time the decision needs to be made, they are unable to make or communicate the decision because of an ‘impairment or disturbance’ that affects the way their mind or brain works. Further information for those practising in England is available from the Department of Health.²⁵¹
2. Scotland by the Adults with Incapacity (Scotland) Act 2000.²⁵² The Act is supported by Codes of Practice for healthcare professionals which you should refer to.²⁵³ A person lacks capacity if they cannot make decisions or communicate them, or understand or remember their decision, because of a mental disorder or a physical inability to communicate in any form.
3. Northern Ireland by the Mental Capacity Act (Northern Ireland) 2016, which partially commenced in late 2019 (phase one – for deprivation of liberty, offences, research and money and valuables).²⁵⁴  The Act is supported by Codes of Practice for phase one of the implementation. A person lacks capacity if, at the time the decision needs to be made, they are unable to understand information, retain information, appreciate the relevance of the information or communicate their decision because of an impairment of, or a disturbance in, the function of the mind or brain. The timescales for implementing the remainder of the Act are as yet unclear, so you should seek legal advice if you have concerns about a person’s capacity to make decisions.

No one can make a decision on behalf of an adult who has capacity. If a patient asks you, or a relative or carer, to make decisions for them you should explain:

1. that it is still important that they understand the options
2. what the treatment or investigation will involve.

You must work on the presumption that every adult patient (over the age of 18) has the capacity to make decisions about their care, and to decide whether to agree to, or refuse, an examination, investigation or treatment.

You must regard a patient as lacking capacity only once it is clear that, having been given all appropriate help and support, they cannot understand, retain, use or weigh up the information needed to make that decision, or communicate their wishes.

You must not assume that a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, apparent inability to communicate, or the fact that they make a decision with which you disagree.

A patient’s ability to make decisions may depend on the nature and severity of their condition, or the difficulty or complexity of the decision.

You must assess the patient’s capacity to make an informed decision about the treatment and then assess whether they are able to decide whether to have the treatment.

If the patient does not have capacity, the Mental Capacity Act 2005 in England and Wales, and the Mental Capacity Act (Northern Ireland) 2016, enables the patient to authorise someone who is over 18 years of age to make decisions for them under a Lasting Power of Attorney (LPA). Alternatively, someone who has authority to make treatment decisions for that person, as a court appointed deputy, can give consent.²⁵⁵ In Scotland, the Adults with Incapacity (Scotland) Act 2000 enables someone to hold Power of Attorney (PoA). The phrase ‘next of kin’ has no legal definition or status, and such a person cannot give or withhold consent on behalf of the patient.

There are two types of LPA. One that enables the attorney to make decisions regarding the patient’s property and one that enables the attorney to make decisions regarding the patient’s care or welfare. The care and welfare attorneys are called personal welfare LPAs in England and Wales, welfare PoAs in Scotland, and care, treatment and personal welfare LPAs in Northern Ireland. The attorney powers relating to the patient’s property are valid if the patient has capacity. However, the attorney powers relating to care or welfare only come into play if the patient lacks capacity, or the attorney reasonably believes the patient lacks capacity. If you are relying on someone who has an LPA or a PoA to give consent on behalf of your patient, you should keep a copy of the LPA or PoA document.

You must take account of the advice on assessing capacity in the Codes of Practice that accompany the Mental Capacity Act 2005, the Adults with Incapacity (Scotland) Act 2000, the Mental Capacity Act (Northern Ireland) 2016, and other relevant guidance. If your assessment is that the patient’s capacity is borderline, you must be able to show that it is more likely than not that they lack capacity.

The decision or action taken on behalf of the patient who lacks capacity must be in their best interests.

You should record in the patient notes your reasons for deciding that:

1. the treatment is in the patient’s best interests
2. the patient lacks capacity.

You should offer patients who are likely to have difficulty retaining information a written record of your discussions, and the decisions that were made.

If factors outside your control mean that patients aren’t given the time or support they need to understand relevant information, and if this compromises their ability to make informed decisions, you must consider raising a concern with your employer or system. You must also consider whether it is appropriate to proceed, as you must be satisfied that you have a patient’s consent or valid authority before providing treatment or care.

In an emergency, decisions may have to be made quickly so there’ll be less time to apply this guidance in detail, but the principles remain the same. You must presume a conscious patient has capacity to make decisions, and seek their consent before providing treatment or care.

The legal position concerning consent and refusal of treatment by those under the age of 18 is different from the position for adults. For the purposes of this guidance, ‘child’ refers to someone aged below 16 and ‘young person’ refers to someone aged 16–17. Children and young people cannot make a Lasting Power of Attorney.

You may provide emergency treatment to a child or young person, or refer them without their consent, to save their life, or prevent serious deterioration in their health or vision.

At 16, a young person is presumed to have capacity to make most decisions about their treatment.

Children under 16 have capacity to make decisions about their treatment if they are able to understand the nature, purpose and possible consequences of the proposed examination and treatment, as well as the consequences of non-treatment. ^{256, 257} 

You should involve children and young people as much as possible in discussions about their treatment, even if they are not able to make decisions on their own.²⁵⁸

Where a child does not have the capacity to consent, you must get consent from someone with parental responsibility. Consent from one parent, providing that parent has the capacity to consent, is usually sufficient, but if parents cannot agree and disputes cannot be resolved informally you should seek legal advice about whether to apply to the court.

Not all parents have parental responsibility. If the parents were married at or after the child’s conception, both will have parental responsibility, even if they have later divorced. Unmarried parents, both have parental responsibility, if they are named on the child’s birth certificate and the child was born on or after:

1. 1 December 2003 in England and Wales
2. 15 April 2002 in Northern Ireland
3. 4 May 2006 in Scotland.

The legal framework for the treatment of young people who lack the capacity to consent differs across the UK. In:

1. England, Wales and Northern Ireland, parents can consent to investigations and treatment that are in the young person’s interests
2. England and Wales, treatment can also be provided in the young person’s best interests without parental consent, although the views of parents may be important in assessing the young person’s best interests
3. Northern Ireland, treatment can be provided in the young person’s best interests if a parent cannot be contacted, although practitioners should seek legal advice about applying for court approval for significant (other than emergency) interventions
4. Scotland, young people who do not have the capacity to consent are treated as adults who lack capacity, and treatment may be given to safeguard or promote their health.

You should encourage the child or young person to involve their parents in making decisions, unless the child or young person wishes to exclude them.

You must get the child or young person’s consent to sharing their information if you involve the family.

If a child with the capacity to consent has consented to treatment that you consider is in the child’s best interests, parents cannot override this.

If a child with the capacity to consent refuses treatment, a court can override this decision. In Scotland, those with parental responsibility cannot authorise procedures that a child with capacity to consent has refused.

If a young person with the capacity to consent refuses treatment, the law in England, Wales and Northern Ireland is complex on whether parents can override this refusal. In Scotland, parents cannot override a competent young person’s refusal.

Although unlikely to occur in optometric practice, if a competent child or young person refuses treatment which you feel is in their best interests, you should contact your professional or representative body for advice.