Limitations to the right to consent to treatment

We earlier published an article under Defending Civic Space, about the freedom not to be subjected to medical experimentation and the issue of seeking a patient’s consent before administering treatment came in. We committed to discuss the exceptions to the requirement of seeking a patient’s consent and here we are!

A medic who administers treatment to a patient without the patient’s consent commits assault or even battery. The patient’s consent must be informed consent – permission granted to administer treatment in knowledge of possible consequences. This means that the medic should explain the purpose, the process of administration and the effects of the treatment to the patient.

Back to our topic, the requirement of a patient’s consent is not absolute. In certain circumstances, a medic is permitted to administer treatment without the patient’s consent. Such circumstances include:

  1. When treating minors

A minor is a person who has not attained the majority age. So, a person who is less than 18 years old in East Africa is considered not to have capacity. However, consent to administer treatment to such persons should be sought from a person who has parental responsibility towards those persons. In the absence of a person who has parental responsibility to the minor, then the medic is required to administer the treatment considering the best interest of the minor.

  1. Acute and permanent incapacity

Whereas it is a presumption that every adult patient has the capacity to give consent to treatment, there are some adult patients who may lack capacity to give such consent due to acute or permanent incapacity. Acute or permanent incapacity may be due to a chronic illness such as dementia, it may be due loss of consciousness, like when one is in a comma, and therefore unable to make decisions about their treatment.

In such situations, a medic is tasked to seek consent from the adult’s next of kin. It could be a spouse, an adult son/daughter, a parent or any other caregiver who attends to the incapacitated adult. In the absence of a next of kin, then the medic must act in the best interest of the patient.

  1. Mentally ill patients

Mentally ill patients may be the insane, the idiots or the lunatics. Administration of treatment to mentally ill patients should be in their best interest. For example, they should be admitted to hospital only if they pose a danger to themselves or others. Mentally ill patients should also be detained, for purposes of administering treatment to them only if such detention is for conducting an assessment of their condition and if their condition is treatable.

This however does not apply to persons who have physical conditions, not related to mental illness. When treating persons with mental illness, their consent or even their wishes may not be considered.

Similar arguments are made for persons who have psychiatric illnesses but depending on the circumstances of the case, a psychiatric patient’s consent must be sought. For example, a person who is depressed may take an overdose of a drug which may result in say, severe gastro-intestinal bleeding. When the depressed patient seeks treatment for the gastro-intestinal bleeding, the patient still remains competent to give their consent to a blood transfusion or an endoscopy.

  1. When Protecting the public: infectious diseases, infection control and confidentiality

Usually, when there is an outbreak of a contagious disease like bird flu or Ebola, the government through its public health initiatives regulates the outbreak by mass immunization or a similar procedure.

In such instances, a person’s right to consent to treatment is restricted in two ways:

  1. The patient’s diagnosis is shared with relevant authorities. The patient should however be informed about this. The patient’s consent to share the diagnosis is irrelevant
  2. The patient is forced to take their medication by supervised administration or involuntary inpatient treatment. A patient with a communicable disease may be detained against his or her will to prevent the spread of the disease.

Clearly, the right to consent to treatment is not absolute. However, a patient’s right to consent to treatment should be respected and every medic should ensure that the patient’s consent is informed.


This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 2 of November 11th, 2016

To receive The Deuteronomy in real time, click HERE.


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