Consent Flashcards
Key principle of medical law - informed consent
Touching patients without their consent is unlawful – assault which is a battery
Why is consent a good thing
Depontological justification - one is justified in holding the belief if and only if one is in the clear or epistemically responsible in holding the belief.
Consequentialist justification – state is justified by the good result it imposes
Four criteria for valid consent
Four criteria for valid consent
Patients must have capacity
Patient must give consent involuntarily
Patient must be informed
Consent must be continuing
What form must consent take ?
Written conset
Fertility treatment
Good practice in surgery
Assumed consent
Conduct
Seeking and complying with treatment
Verbal consent
Two approaches to capacity
Status and function
The law uses a comination
Adult terms of capacity in act 2000
Understand info
Retain info
Use or weigh the info
Communicate their decision
Hold decision consistently
Adult terms of incapaciy is when a person is incapable in
Acting
Making decisions
Communicating decisions
Understanding decisions
Retaining the memory of decisions
From the mental capacity act in eng;land and wales but same in Scotland
A person is assumed to have capacity unless its established otherwise
A person is not to be treated as if they lack capacity to make a decision unless all steps have bee taken to help them in the decision making process
A person is not to be treated as unable to make a decision just because the decision is unwise
A decision made on behalf of a person who lacks capacity must be In that persons best interest
Why might someone lack mental capacity?
Impairment of the functioning of the brain which can be temporary or permanent
What makes assessing difficult?
- It’s not a once and for all judgement
- Non-cooperation
- Just because the decision is irrational or bizarre, does not mean patient lacks capacity
- Underlying conditions may cloud your judgment (and may or may not affect patient’s capacity)
- Communication problems
Proxy-decision makers
- Lasting power of attorney (LPA)
- Advance directives
- Best interests test (HCP, relatives, carers)
- Note: proxies have their problems:
– Proxy and patient do not always agree (~68%
accurate)
– Proxy decisions are normally subject to “best interests” … not so our own decisions
The problem of children
• When should a child be considered old enough to
consent to medical treatment?
- Consent of 1 parent enough for most procedures
- If disagreement, Court can:
– Authorise
– Overrule
– Not compel
• Should children (& adults lacking capacity), be
allowed to participate in research?
Gillick competence
- 1986: Landmark case
- Victoria Gillick & her children
- Centred around contraceptive advice to under-
16s without parental consent
• “Gillick-competent” child – respect for mature
minor’s autonomy (see - Fraser Guidelines)
Fraser guidelines
• that the girl (although under the age of 16 years of age) will
understand his advice;
- that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;
- that she is very likely to continue having sexual intercourse with or without contraceptive treatment;
- that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
- that her best interests require him to give her contraceptive
advice, treatment or both without the parental consent.”
What is the test of gillick competency?
“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.”
Voluntary consent
“Consent is no less effective when it is unwillingly or
reluctantly given; few patients would consent to major
surgery were it not for the force of surrounding
circumstances and the knowledge that health or even
life may be in jeopardy if they do not consent” Skegg,
p278, Jackson 2010
Must not be coerced into treatment (but, pressure in and of itself, is not coercion) – beware of undue influence
Informed or continueing consent
Hippocrates: “Perform [your duties] calmly and adroitly,
concealing most things from your patient while you are attending to him … turning his attention away from what is being done to him; … revealing nothing of the patient’s future or present condition”
Some problems:
- How much information is enough(“sufficiently” informed)?
- Consent is a process (continuing) not an event
- Do patients understand what consent is all about?
- Reasonable doctor v prudent patient (NB: the ruling in Montgomery v Lanarkshire, 2015)
- Questions
Statistics held by the BMJ in 2006 by akkad et al
• 646 (88%) – believed it was a legal requisite to sign a consent
form before surgery
- 20% didn’t know they could change their mind after signing
- 16% thought that signing a consent form removed right to
compensation
- 10% didn’t know what they’d agreed to
- 46% thought the main function was to protect the hospital
- 68% thought it gave doctors control over what happened
“[I]t has to be doubted whether in any real sense a test which requires the patient to take the initiative can ever genuinely promote patient autonomy. The articulate middle-class patient, whether receiving private or NHS treatment, may well be in a position to initiate a discussion of risks and benefits. The less articulate, the apprehensive, those who feel socially ill at ease with the consultant, or whose doctors are hard-pressed in
inner city clinics, will be hesitant to initiate discussions…” Margaret Brazier, p195, Jackson 2010
Summary
Explain the four criteria required for consent to be valid
Discuss the importance of consent in the practice of medicine
Describe the rights of a capacitous patient as regards refusal of, preference for and demanding of treatment
Explain the criteria for adult capacity, and incapacity (under the Adults with Incapacity (Scotland) Act (2000))
Recognise some of the difficulties that can arise when trying to assess capacity
Explain how decisions can be made on behalf of a patient who lacks capacity
Outline what is meant by a Gillick-competent patient
Describe some of the difficulties around the area of informed consent in practice
