Consent Flashcards
Describe the difference in how scottish law is interpreted vs english/welsh law?
Scottish law must be interpreted purposively, i.e. to the intended effect of the legislation
Welsh/English law can be interpreted purposively or literally (i.e. word for word)
Define negligence?
A failure in duty, the burden is on the claiment to prove forseeable damage that you (the doctor) failed to address
Define a breach of consent?
Burden is both on the claimant to prove no consent and the defendant to demonstrate a valid consenting process.
Doesn’t matter if treatment was still appropriate medically.
Describe the process of gaining consent?
1) Are they competent?
2) You must provide sufficient info for the patient to make a rational decision
3) In a language they understand
4) Don’t over-explain a procedure to the point you scare them off
5) Must gain consent for treatment & the delivery method
What defines a patient as competent to give consent?
Under UK law its assumed unless evidenced otherwise. In scotland 12yr & over are assumed competent
Can the patient understand the information & consequences of that information?
Can the patient make reasonable decisions based rationally?
List the legislation references patients incapable of giving consent?
Adults with Incapacity (Scotland) Act 2000
Mental Capacity Act 2005 England
What is a Public Guardian?
An accountant of the court under the Adults with Incapacity (Scotland) Act 2000
They supervise a guardian or court appointee acting as the nearest relative
What does a public guardian do?
They supervise a guardian or court appointee of an adult with incapacity including:
- Maintaining documentation
- Dealing with financial complaints
- Providing attorneys when needed for financial affairs
- Consulting with the Mental Welfare Commission & local authority
What does the Mental Welfare Commission do?
MWC exercises protective functions for any adult subject to an intervention or guardianship order
What are the types of power of attorney under the Adults with Incapacity Act 2000?
Continuing power of attorney - Relates to property and financial matters
Welfare Attorney - Relates to personal welfare
What is a power of attorney?
Control over a person’s assets or personal welfare that is written by the granter while they retain capacity and certified by a solicitor
How can a medical practitioner take over the patient’s care choices
If the patient is incapable of making their own medical decisions/giving consent a medical practitioner can fill out an incapacity certificate
Allowing them to provide medical intervention to safeguard or promote physical & mental health.
Whats the maximum duration of an Incapacity Certificate?
1yr
Although the duration depnds on the condition causing incapacity & the circumstances
What if the doctor fills out an incapacity certificate but the patient has a guardian?
IF the guardian doesn’t agree with the doctor the doctor can appeal to a court.
Who can sign an incapacity certificate?
As of the Smoking, Health & Social Care Act (Scotland) 2005 dentists and other health care professionals can
Define a patient’s “Best Interests”?
To save their life or improve/prevent deterioration in their physical & mental health
What would make us consider a patient lacking capacity?
IF they cant:
- Understand information
- Retain information or use it in decision making
- Communicate a decision
- Make a decision
Define an Advance Directive?
An order made by the patient in advance to refuse specific treatments should they lose capacity.
You must consider whether the patient’s life has changed sufficiently or its been so long that they may have changed their mind.
The AD applies to specific treatments named in the order
What is Gillick Competency?
A child can be considered Gillick Competent if they are mature and intelligent enough to understand the treatment option & risks.
What are the age boundaries for Gillick Competency?
<16yr olds can be called gillick competent
In England how does consent work for <18s?
<18s can give affirmative consent to treatment that only a court can overrule
<16s can too if considered gillick competent by the doctor
In Scotland what legislation applies to minors and consent?
The Age of Legal Capacity (Scotland) Act 1991
How does consent work for <16s in Scotland?
Parents can’t overrule an <16s consent if they’re gillick competent.
Due to the wording of the act theres argument as to whether Parents can overrule the minors Dissent, particularly if the treatment would be in the patient’s best interest
How is organ donation consented in the UK?
Its opt in in Scotland, England & NI.
In Wales its Opt Out under the Wales Human Transplantation Act 2013
If an adult without capacity has no welfare attorney or guardian what do you do?
Fill out an Incapacity Certificate and treat in the patient’s best interests
- A If an adult without capacity has a welfare attorney or Welfare Guardian?
If they agree with treatment then fill out an Incapacity Certificate and treat.
If they don’t, apply to the MWC for a 2nd opinion
- B If the MWC agrees or disagrees with you what do you do?
If they agree and no one challenges it then complete the incapacity certificate and treat in their best interests
If they disagree or an interested party challenges it you will treat to preserve life or prevent serious deterioration then go to a court.
