This is an interesting question which raises a number of issues. For consent to be considered both legal and ethical, it must be: given by a person with capacity; voluntarily given, with no undue influence; given by someone who has been adequately informed; and a fair choice.
What is capacity?
Capacity refers to the everyday ability that individuals possess to make decisions or to take actions that affect them, from simple decisions such as what to have for breakfast to far-reaching decisions about serious medical treatment or financial affairs. A person lacks capacity if he or she is unable to make or communicate a decision about a particular matter because of an impairment of, or a disturbance in, the mind or the brain. This may be the result of a variety of conditions, including dementia, mental illness, learning disability, brain damage, intoxication or any other condition causing confusion, drowsiness or loss of consciousness (e.g. concussion, stroke, heart attack, epileptic fit, serious accident, delirium).
Some groups of people are regarded as ‘vulnerable’ in terms of giving informed consent to take part in research studies. Children (under 16 years of age), people with learning and difficulties and others who may lack capacity to give informed consent (such as people with dementia or enduring and severe mental health problems, or those who are unconscious) fall into this category. The interests of these groups of people are protected in a variety of ways, including by acts of legislation, an important one being The Mental Capacity Act (2005).
Lack of capacity to give consent
The Mental Capacity Act (2005) provides a comprehensive framework for decision making on behalf of adults aged 16 and over who are unable to make decisions for themselves, i.e. they lack capacity. The Act applies to all decisions taken on behalf of people who permanently or temporarily lack capacity to make such decisions themselves, including decisions to include such people in research. All researchers working with research participants who lack, or may lack, capacity need to be aware of its underlying principles and the provisions relating to research. The Act is accompanied by a statutory Code of Practice providing guidance on how it should be used. Researchers and others making decisions involving people lacking capacity have a legal duty to have regard to the guidance in the Code of Practice. The Act applies in England and Wales only.
Children and young people
There are many ethical and legal issues to consider when involving children and young people in research, depending on the type of study being carried out (for example, whether or not it is a clinical trial of a medicinal product (CTIMP), and whereabouts in the UK the study is taking place. In particular, it is important to understand the key concepts of consent and assent.
Consent is a legally defined decision given by someone who is competent, who has been adequately informed (and has adequate understanding), and who is free from undue influence enabling them to make a voluntary decision. The person can provide consent, provided they are competent. Otherwise someone who is empowered by law can provide it (e.g. a parent in the case of children). A child who is not capable of giving consent alone can still be involved in the decision making process with others who are able in law to provide consent. There is no legislative statute in England, Wales or Northern Ireland governing a child’s right to consent to take part in studies other than CTIMPs. Common law presumes that young people aged between 16 and 18 years old are usually competent to give consent to treatment.
Assent is difficult to define and is used in diverse ways e.g. compliance by a child as young as three years old, to active agreement of a young teenager. Assent is agreement given by a child/young person or others who are not legally empowered to give consent. It is important to provide children/young people with information that matches their capacity when seeking assent.
Case law suggests that if a young person has sufficient understanding and intelligence to fully understand what is proposed, and can use and weigh this information in reaching a decision, they are considered ‘Gillick competent’ and can give consent to treatment. ‘Gillick competence’ is a term originating in medical law to decide whether a child (16 years or younger) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge. The standard is based on a decision of the House of Lords in the case Gillick versus West Norfolk and Wisbech Area Health Authority (1985). The case is binding in England and Wales, and has been approved in Australia, Canada and New Zealand. When a young person is believed to be competent, consent from those with parental responsibility is not legally necessary, although the involvement of parents in decision making is encouraged in most circumstances.
In the absence of law relating specifically to research, it is commonly assumed that the principle of ‘Gillick competence’ can be applied not only to consent for treatment but also to consent for research.
As you can see from the above, researchers hoping to gain consent from individuals to take part in a study must give careful consideration to a range of sometimes complex ethical and legal issues.
Blogger: Dorothy McCaughan