Intended for healthcare professionals

Rapid response to:


Consent may be hard to obtain for incompetent patients when relatives object

BMJ 1998; 316 doi: (Published 23 May 1998) Cite this as: BMJ 1998;316:1608

Rapid Response:

Life-saving treatment may be given without consent under the doctrine of necessity

Morris described a case when a decision had to be made, before his patient regained consciousness from a Caesarean Section, to perform an emergency laparotomy to explore the abdomen for possible life-threatening haemorrhage; but the patient’s husband refused to give consent to the treatment.(1) It is certainly good clinical practice to involve the relatives in the management of patients. However, it is important to note that for an adult patient, nobody other than the patient herself can give valid legal consent to medical treatment, even if she is unconscious or mentally incapacitated . (2) Hence, whether the husband of Dr. Morris’s patient agreed to the treatment was not legally relevant.

In an emergency, the patient may be treated without consent under the doctrine of necessity, as long as there is a necessity to act when it is not practicable to communicate with the patient and that the action taken is no more than is immediately necessary in the best interests of the patient. (2)(3) Hence, it would clearly be legally permissible to perform laparotomy on Dr. Morris’s patient if the doctors considered it immediately necessary and that a simpler procedure was unlikely to be effective. A case conference was not necessary, although it might be wise to request and document the opinion of another consultant.

The dilemma facing Dr. McFadzean (4) was more complicated, as his patient had previously refused consent to the type of treatment under consideration. Again, it must be noted that relatives could not give valid legal consent.(2) It is clear that common law allows a patient to give advanced refusal to treatment whilst mentally competent (5), and that intervention cannot be justified when it is contrary to the known wishes of the patient. (3) However, it could be argued that Dr. McFadzean’s patient previous refusal was likely to have been made without taking into consideration her subsequent changes in both her clinical condition and the consequences of her refusal. A High Court declaration that it would not be illegal to offer surgical treatment could be sought if there was sufficient time. Otherwise, in determining whether they were justified to give treatment under the doctrine of necessity, the doctors must assess the degree by which subsequent changes in the patient’s condition might have affected the patient’s prior refusal to the treatment.

(385 words)


1) Morris EP. Consent may be hard to obtain for incompetent patients when relatives object BMJ 1998;316:1608 ( 23 May )

2) Re F (Mental patient: Sterilisation) [1990] 2 AC 1

3) Brahams D. Jehovah’s Witness Transfused without Consent: a Canadian Case Lancet 1989 (No 8676): 1407

4) McFadzean J, Monson JP, Watson JD, Coakley JH, Hoyte P, Caplan AL, Hansen-Flaschen J. Ethical debate: The dilemma of the incapacitated patient who has previously refused consent for surgery. BMJ 1997; 315: 1530-1532

5) Re C (Adult: refusal of treatment) [1994] 1 WLR 290.

Competing interests: No competing interests

23 May 1998
Wai-Ching Leung
Senior Registrar in Public Health Medicine
Sunderland Health Authority, Durham Road, Sunderland SR3 4AF