Unconscious patients who are unable to consent to treatment can present legal and ethical challenges for junior doctors in A&E.

The following fictional scenarios, based on the hundreds of calls made to the MDU advice line on this subject each year, highlight the medico-legal points to bear in mind:

1. A young male patient is brought into A&E having been involved in a fight outside a local pub. He has sustained cuts and bruises and may have banged his head on the pavement. He smells strongly of alcohol and was initially uncooperative before losing consciousness.

It’s likely the patient’s initial refusal to cooperate was a symptom of his condition rather than because he was refusing consent. As the patient has a suspected head injury it is not practical to wait until he is sober before obtaining consent and in the absence of a clear expression of his wishes, you can provide appropriate treatment and any ongoing care necessary to prevent a serious deterioration of his condition, as set out in the GMC’s consent guidance.

If the patient regains capacity while under your care, you should tell him what has been done and why as soon as he is sufficiently recovered to understand.

2. A female patient in her twenties is brought in unconscious and suspected of having taken an overdose of benzodiazepines. She had been found by a neighbour with an empty bottle of tablets beside her and a note declaring that she wishes to end her life and refusing all treatment.

To be valid and legally binding under the Mental Capacity Act 2005 (England and Wales), an advance decision refusing treatment must state exactly what treatment is being refused and in what circumstances. Decisions refusing life-sustaining treatment must be in writing and include a clear and specific statement that it applies even if the patient’s life is at risk. The document must also be signed and witnessed.

Doctors are under a statutory obligation to ‘have regard to’ the Mental Capacity Act Code of Practice in these situations.

Chapter 9 addresses advance decisions and sets out exactly what is required before a decision to refuse life-sustaining treatment can be considered valid.

You should always involve senior colleagues in assessing the validity and applicability of such notes and whether the patient had the capacity to make such a decision. It’s likely the trust legal team will also be called on for advice in these circumstances.

If it is decided the suicide note is not a valid advance decision, the healthcare team needs to determine what treatment will be of overall benefit to the patient and least restrictive of her future options.

3. A patient is admitted following a suspected stroke. Soon afterwards he arrests but is eventually successfully resuscitated. When the patient’s sister arrives, she says that her brother has previously had two strokes and had made an advance decision refusing life-sustaining treatment in these circumstances. She complains that no one consulted her so his wishes had been ignored and threatens to take legal action.

You could not have been expected to delay emergency treatment to look for an advanced decision if there was no clear indication that one exists.

Section 5 of the Mental Capacity Act 2005 provides a measure of protection for those who carry out emergency treatment while unaware of the existence of an advance decision, provided:

• An act is in connection with the care or treatment of a patient;

• Reasonable steps were taken to establish whether the patient lacked capacity; and

• The doctor reasonably believes that the patient lacks capacity and that it would be in the patient’s best interests to proceed.

This protection from liability does not cover criminal liability nor liability resulting from the medical practitioner’s negligence in doing the act.

However, once it is clear that a patient has made an advanced decision that is likely to be relevant, its validity and applicability should be assessed as soon as possible and you should ensure that its existence is recorded in the patient’s notes as it will need to form part of their care plan.

The GMC has launched new guidance clarifying when doctors should seek consent from patients to make and publish recordings.

The wide availability of digital recording equipment means that making images of patients, or recording them, is becoming easier. While the GMC acknowledges this will benefit clinical care as well as teaching and research, it warns that making images and recordings of patients can raise complex legal and ethical issues.

The MDU has published the following advice based on the key points of the GMC’s guidance:

1. When seeking specific consent to record patients as part of their care, explain why it is needed, how it may be used and stored and that it may be used in anonymised form for teaching, research or other healthcare purposes (secondary purposes) without their further consent. Make a note of the discussion in the patient’s records.

2. Specific consent is not necessary to record certain clinical images such as x-rays and images of pathology slides but doctors should explain to patients, where practical, what is involved when seeking consent for the examination, including that this recording may be used in anonymised form for other healthcare purposes such as teaching.

3. Guard against improper disclosure of recordings made as part of patient care in the same way as medical records.

4. If patients lack capacity, you must obtain consent from someone with legal authority for recordings which form part of clinical care. For other recordings, you and the person with legal authority should be satisfied the recording is necessary, in the patient’s best interests and that the purpose cannot be achieved another way. There are some exceptions, such as for clinical research, and doctors should seek further advice in these circumstances.

5. Children with the necessary maturity and understanding can usually consent to recordings as part of their care or for secondary reasons but you should encourage them to involve their parents. Otherwise, you should obtain authority from the person with parental responsibility but you may need to check whether recordings can be used for secondary purposes as young patients mature and attain the capacity to consent themselves. Be prepared to stop recording if a child shows any signs of distress.

6. Specific consent is usually needed to disclose recordings in which the patient is identifiable, unless disclosure is required by law or can be justified in the public interest such as to prevent a serious crime.

7. Covert recording of patients is rarely justified and can only be considered with specific authorisation and in line with the law.

8. Where a patient has died, you should follow their known wishes about recordings made while they were alive although if the patient is identifiable in the recording, you may need to consider obtaining further consent from their family before it appears in the public domain.

9. Be cautious about agreeing to take part in television or radio programmes involving patients, or to appear in print or on the internet. As well as satisfying yourself that the patients have given their consent, you should check they understand the implications and be prepared to raise concerns and even withdraw your cooperation if you believe the recording is unduly intrusive or damaging to them.

Read the full GMC guidance.