As a general rule, medical or surgical procedures may not be carried out without the informed consent of the patient.
The law is not clear on what should happen in cases where the patient is unable to give consent because, for example, of a mental disorder or because he/she is comatose. Similarly, the question of what consent is required in the case of children is not totally clear.
There are detailed rules about the conduct of clinical trials and the information that must be given to participants in these trials.
In general, valid consent must be informed consent. The law is not clear on exactly how much information a doctor must give a patient. Consent is now legally defined for the purposes of psychiatric treatment but not for other treatment.
If a person carries out medical or surgical procedures without consent, he/she could be charged with the crime of assault - the decision on charges is made by the Director of Public Prosecutions.
He/she could also be sued for the tort (civil wrong) of trespass to the person and possibly for breach of constitutional rights. If the person involved is a medical professional, he/she could also be sued for negligence. The patient may take these actions.
If you are a mentally competent adult, there is no doubt about the need for consent but what exactly constitutes informed consent is not totally clear.
You may give a general consent - for example, you may tell your doctor to do what he/she considers best. You may give implied consent by not specifically ruling out certain procedures.
Your implied consent may arise out of necessity - for example, if unexpected complications arise during an operation.
If you are seriously ill and not in a position to give or withhold consent, the doctor may carry out what would be considered usual procedures arising from necessity.
Sometimes doctors may consult with your family or nearest relatives but they really have no legal right to give or withhold consent.
It is clear that, if you are a mentally competent adult, you have the right to refuse or discontinue medical treatment even if the inevitable consequence is that you will die. This is different from taking positive measures to end your own life or another person's life.
If you are not mentally competent, you are not in a position to make a decision about refusing or discontinuing medical treatment. The law is not clear on exactly who is competent to do this. In general, a medical professional may make decisions that the treatment should be discontinued for medical reasons. In some countries, "living wills" may be considered legally valid but there has been no ruling on this in Ireland. A "living will" is a document in which a person sets out his/her wishes about the continuation or otherwise of medical treatment if he/she should become mentally incapable.
An enduring power of attorney does not give the attorney the power to make decisions of this nature on behalf of the person granting the power.
Section 2(2) of the Criminal Law (Suicide) Act, 1993 sets out the law in relation to suicide. Suicide itself or an attempt to commit suicide is not a crime in Ireland. However, it is a criminal offence to help another person to take measures to end his/her life.
It is a criminal offence to aid, abet, encourage or procure the suicide of another person - the crime is usually referred to as assisted suicide. The maximum penalty for assisted suicide is 14 years imprisonment. If you assist someone to commit suicide, you may be charged with murder, manslaughter or assisted suicide, depending on the exact circumstances. Such a charge could arise if a person assists another person to end his or her life even if the other person is terminally ill or wants to end his or her life. This charge could arise regardless of whether the person assisting is a medical professional or not.
Pain-killing drugs that may also shorten life may be administered if the intention is to deal with pain and not to end life.
It is the practice for doctors and other medical professionals to get the consent of parents or guardians for medical and surgical procedures to be carried out on minors. There is no clear law on the subject but it seems to be accepted that parental consent is necessary.
The Supreme Court has held that a health board (now relaced by the HSE) did not have the right to insist on having a test carried out on a child without the parents' permission. This case involved the PKU or heel pin-prick test, which is usually carried out on babies shortly after birth.
The Supreme Court held that only in exceptional circumstances would the court intervene and make an order contrary to the wishes of the parents.
It is not clear but the Supreme Court might intervene if the parents refused life saving treatment. It seems that the Court would take into account the best interests of the child and possibly give greater weight to the rights of the child than to the rights of the parents.
Section 23 of the Non-Fatal Offences Against the Person Act, 1997 provides that young people of 16 and over may give valid consent to medical, surgical and dental treatment.
The Mental Health Act, 2001 has specific rules about consent in relation to people being treated in psychiatric hospitals or units. For these purposes, consent means consent in writing, obtained freely without threats or inducements, where:
Under the Act, the consent of a patient to treatment is required except where the consultant psychiatrist considers that the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition or to relieve his or her suffering and the patient is incapable of giving such consent because of his/her mental disorder.
Psycho-surgery may not be performed unless the patient consents and it is authorised by a tribunal.
Electro-convulsive therapy may not be performed unless the patient gives consent or, where the patient is unable or unwilling to give consent, the therapy is authorised by the consultant psychiatrist responsible for the patient and by another consultant psychiatrist.
Where the patient is getting medicine for the amelioration of the mental disorder for a period of three months, the medicine must be discontinued unless the patient consents or, where the patient is unable or unwilling to give consent, the continued medication is authorised by the consultant psychiatrist responsible for the patient and by another consultant psychiatrist.
Psychiatric patients may not be restrained or placed in seclusion unless this is necessary for treatment or to prevent the patient form injuring himself/herself. The Mental Health Commission will make rules for the use of seclusion and mechanical means of bodily restraint.
The general rules about clinical trials are set out in the Control of Clinical Trials Act, 1987. Under the Mental Health Act, 2001, people who are suffering from a mental disorder and who have been admitted to an approved centre may not take part in clinical trials.
This Act sets out who may conduct clinical trials, the conditions under which they may be conducted, the rules about consent of participants and the monitoring of trials.
Trials may only be conducted by registered doctors and dentists and permission must be sought from the Minister for Health. There must be ethics committees for clinical trials.
The Act sets out the rules for the consent of participants to clinical trials. Your consent to a clinical trial must be in writing and signed by you.
Your consent is not valid unless:
The person conducting the trial must make sure that every participant is aware of:
There must be a six-day gap between giving permission and the actual administration of the substance being tried. You are entitled to withdraw your consent at any time.
As a general rule, you may not be offered any reward for taking part in a clinical trial.