Consent Flashcards
Why do we value consent on an ethical basis?
Consent is ethically significant because it respects individuals’ autonomy, dignity and right to make decisions about their own bodies and lives. It acknowledges that each person has the right to control what happens to them. There are two key ways to look at consent and why we value it.
Moral agency is based on the view that we are human agents because we have the capacity to reason. This capacity to reason is what separates us from other animate objects and allows us to make decisions that are in line with our own standards. No giving value to consent takes away someone’s ability to reason.
Prudential value/well being is based on our ability to experience different states and each of us have different views of what’s going to make our lives go well. Consent on this approach enables us to be guided by what is going to aid in our well being. If we try overrule this we are acting on an unjustified assumption that we know better what will make their live go well.
Why do we value consent on a legal basis?
Consents importance is also reflected in legal frameworks. Were consent is not given it can result in criminal liability (Crimes Act), Civil liability (Tortious battery), code liability (right 7 - the right to make an informed choice and give informed consent), or disciplinary liability.
Every intervention that involves touching is an assault/battery - but it would be absurd to be held liable for brushing past someone. There is an implied consent to touching in what is accepted as ordinary in daily life. Section 20(1) of Crimes Act provides that all law defenses are retained - consent is a common law defence/justification - therefore it remains applicable to the Crimes Act.
Medical treatment is not a daily life activity that is consented to within the scope of this implied consent. Rather section 61A of the Crimes Act sets out that any surgical procedure is lawful provided there is consent. The Court in Crown v Lee has held that this section extends to cover other procedures that are not surgical - section has a broad scope to cover all health related procedures.
When does the law say that consent is no defence?
Crimes Act Section 63 - Consent to Death. No one has a right to consent to the infliction of death upon himself or herself; and ; if any person is killed the fact he or she gave any such consent shall not affect the criminal responsibility of any person who is a party to the killing. (E.g., if you told someone to kill you and they did, they would still be guilty of murder).
**The End of Life Act is an exception to section 63.
Also consent not valid when incapacitated, intoxicated and do something outside the scope of the consent.
When do courts not recognise consent?
When what was done was outside the scope of what was consented to, in the cases of minors and if consent was given whilst intoxicated.
Specifically to health law - consent may be vitiated if patients consent was premised on a mistake belief of the nature and quality of the act/procedure. Very fact dependant assessment.
In the health care context exemplary damages are available when there is a ….
Flagrant disregard of rights.
What does it mean for consent to be legally effective in relation to medical law for the purposes of the Criminal law?
Consented to the nature and quality of the act.
Where there is consent to nature and quality of the act, but a failure to inform of aspect of treatment what can happen?
Courts generally treat as a DOC/Code breach.
They are reluctant to use tort of battery in the medical context involving failure to inform.
What are the facts of R v Lee?
Women consented to a religious deliverance practice which involved group applying excessive force to her for long period of time - she died.
What was the legal issue in R v Lee and what was the outcome?
Whether the should recognise her consent.
Could held that in cases of intention infliction of harm consent may be enough unless there are really good public policy reasons to remove the exception of consent and those policy reasons outweigh the social utility of the activity in question and the value that sociality places on personal autonomy.
Basically, means that if someone consents to getting hurt on purpose, it would be valid unless there’s a really good reason not to allow it, like if it’s against what most people think is right and it goes against personal freedom.
In this case it was recognised that religious practices are really important to us so we do not want to undermine her consent. Therefore her autonomy respected.
What are the facts of S v R?
38 year old man took in 17 year old girl. Accused her of doing something to one of his kids. As punishment smashed her finger with a hammer. He said if she did submit to punishment she had to leave.
He said she consented.
What did the court conclude in S v R?
That the circumstances were equivalent to duress because the alternative was to be homeless.
Public policy reasoning - example of domestic violence so good public policy reasons
No positive social utility associated to this situation.
Displaced personal autonomy = consent no defence.
Autonomy is very important but there are limits - consent will be removed on case-by-case basis when public policy reasons outweigh to value we put on autonomy.
If you are considered to not have capacity what effect does that have on your decisions and consent?
Not legally effective
What is the starting point and the presumption in relation to decisional capacity of consent?
The starting point is that if someone is of sound mind (has capacity) they can make their own decisions.
We have a presumption that you are of capacity and only when there is a reasons to look further can that presumption be rebutted.
Who has the onus of proof in disputing capacity?
The onus is on the personal who disputes capacity to prove lack of capacity.
Why the the legal test to rebut presumption of capacity high?
Because it overrides someone’s wishes which is inconsistent with human rights of respecting autonomy and dignity.
The test is not a status based or outcome based test - it is a functional test which requires reasoning.
What is the test for if a person has capacity?
Person must understand the information.
Must be able to retain the information so that you can weight and evaluate it in order to work out the consequences and decisions value.
Can the person reason through their decision (rational to their own values - so the reason for decision does not matter).
Re: C (Audit: Refusal of Treatment) 1994 (UK)
What are the three characteristics of capacity?
Time Specific - what is capacity at the time decision is being made and loss of capacity can be temporary, permanent or fluctuate.
Risk-Relative - capacity is more important for things that propose more risk - the more risky the more capacity required.
Decision Specific - not all or nothing.
What are the facts of Re: T?
Car accident. Refused blood transfusion whilst in premature labor. C-section. Child was then delivered still born. Her condition deteriorated. Doctor gave blood transfusion in best interest of the patient.
Mother made point to nurses that if blood transfusion became necessary she would refuse because Jehovah’s witness.
Undue influence - T had not practiced this religion in years. Lived with boyfriend and had other lifestyle choices.
What was the issue and outcome of Re: T?
Whether the doctor performing a blood transfusion without consent was lawful?
Held that it was justified on the principle of necessity.
The law requires that an adult patient who is mentally and physically capable of exercising a choice must consent for the treatment to be lawful - But in some instances consent will not be explicit and can be inferred from the patients conduct in the context of the surrounding circumstances.
If in an emergency and the patient has made no choice (and in no position to make one) a practitioner can lawfully treat the patient in accordance with clinical judgement of what’s is in the patients best interest.
What is in the best patients interest will often fall on the side where life will be protected.
What are the facts of Re: C?
Patient has paranoid schizophrenia - been in psychiatric ward for 32 years.
Patient refused to consent to amputation of the leg below the knee. Was advised that failing to do so would result in small chance of survival. He said he understood this risk - he said he’d rather die with two feet than live with one.
Patient consented to conservative treatment and as a result his condition improved.
The hospital refused to give an undertaking that the leg would not be amputated at some time in the future.
Patient applied for injunction to prevent amputation without first having his written consent.
What was the issue and the outcome of Re C?
Whether patient can get an injunction to ensure unconsented amputation will not occur.
Injunction was granted because could not be established that the patients capacity was so impaired to render him incapable of understanding the nature, purpose and effects of the treatment advised.
The fact he said he would rather die with two than live with one leg showed he was capable of reasoning with himself.
Set out the test for if a person has capacity.
Explain capacity in the context of the HDC Code of Rights
Right 7(2) of the Code is about the right to make informed choice and give informed consent. This right directly states the presumption of capacity. It goes further and says that “even when a consumer has diminished competence that person retains the right to make informed choices and given informed consent to the extent appropriate to his or her level of competence”. This reflects that capacity is not all or nothing.
There is no doctrine that allows family members to consent on behalf of adult children unless appointed as EPOA.
What is the adult guardianship Act?
Protection of Personal and Property Rights Act (PPRA).
What is section 5 of the PPRA?
Section 5 reflects the principle of presumed capacity unless rebutted.
What is section 8 of the PPRA?
That the primary objective is to make the least restrictive intervention possible.
Section 8 is in recognition that substituted decision making is an intrusion into human rights.
What is a critical analysis of decision making?
