Consent

Question 1

why is consent so important in medicine?

Answer 1

patient autonomy
human rights
acting ethically

Question 2

what does the GMC say in regards to consent?

Answer 2

“You must be satisfied that you have consent or other valid authority before you carry out any examination or investigation, provide treatment or involve patients or volunteers in teaching or research.”

Question 3

R v Brown (1996) 1 All ER 545 confirms

Answer 3

Any adult of sound mind has an absolute right to determine what shall be done with his own body; a doctor who performs an operation without a patient’s consent may commit an assault or battery depending on jurisdiction.

Question 4

Sidaway v Board of Governors of the Bethlehem Royal Hospital (1984) QB 493 confirms

Answer 4

The patient must be given enough information to be able to come to a rational decision as to whether they wish treatment to be carried out. They must be capable of understanding the information that they have been given.

Question 5

name 3 types of consent

Answer 5

implied consent
expressed consent verbally
expressed consent in writing

Question 6

what is the bolitho principle?

Answer 6

• Eminent group of experts stated that they would never do what the defendant had done
• However, a small group of reasonable doctors looked very closely at all the particular facts of the case and stated that “in the circumstances” they might have done what the doctor did
• The judges preferred the later group’s view: they had applied their mind to the particular problem not simply made bland statements
• This case was widely held to add common sense to deliberations on consent cases

Question 7

how does Pearce extend on the Bolitho principle?

Answer 7

Where an average person would expect to be told about the risk they should be told

Question 8

discuss the Chester vs Ashfar case (informed consent)

Answer 8

• Woman needed spinal operation
• The operation was carried out with proper skill and attention, but a recognised possible but rare side effect occurred
• She had not been told of its possibility
• Peers of the surgeon stated they would possibly not have warned her either
• The claimant stated that even had she known of the possibility she would have had the operation but would have wanted time to think
• The judge stated she was an intelligent woman and the doctors should have considered
whether she would have wanted to know this information

Question 9

discuss Montgomery vs Lanarkshire Health Board

Answer 9

• Nadine Montgomery gave birth to a baby boy on 1st October 1999 with severe disabilities
• Two grounds of negligence
o Failure in regard to antenatal care – she should have been given advice about dystocia
o Failure to manage the management of labour
• Mother and sister both GPs and she worked for a pharmaceutical company as a hospital consultant – clearly intelligent (judge)
• Ms Montgomery was just over 5ft and had DM
• Went to the Court of Session, and subsequently to the Inner House on appeal before appeal to the Supreme Court
• The Supreme Court upheld Ms Montgomery’s case against the health board

Question 10

what is negligence?

Answer 10

failure in duty - burden of proof on the claimant

Question 11

what does negligence require?

Answer 11

causation

foreseeable damage

Question 12

consent in court

Answer 12

Requires a failure to gain consent (burden of proof on the claimant but also requires demonstration of a valid consenting process by the defendant)

Does not require causation

Treatment could have been appropriate and
appropriately carried out

Question 13

discuss R v Brown (1994) 1 AC 212

Answer 13

The law vigorously defends the principle that every person has the right to have his bodily integrity protected against invasion by others. Confirms that the law will not protect those who wound or cause actual bodily harm to another for no good reason, furthermore, it confirms that in the absence of such good reason even the consent of the party on whom the injury is inflicted is no defence to the charges. This case demonstrates the court taking a moral stance to uphold the principle of protecting bodily integrity. Unlike in negligence trespass to the person does not require causation to succeed in a claim.

Question 14

law for children in Scotland

Answer 14

Scottish Childrens Act

Question 15

what is a child? (legally)

Answer 15

<16 Scotland

<18 England and Wales

Question 16

what patient groups make consent difficult?

Answer 16

Children
Mentally handicapped
Adults with incapacity

Question 17

describe the Mental Capacity Act 2005 (England)

Answer 17

This puts in writing the principles of consent

1. A person is assumed to have capacity unless it is established that he lacks capacity
2. A person is not treated as unable to make a decision unless all practical steps to do so have been taken without success
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision
4. An act done or a decision made under this Act on behalf of a person who lacks capacity must be done or made in his best interests and should not be done if the outcome can be achieved in a way that is less restrictive of the person’s rights and freedom of action

Question 18

who can consent?

Answer 18

1. A patient with the capacity or competence to consent
2. A parent of a child with parental responsibility
   a. <16 yrs have no right to refuse (in Scotland) 18 England and Wales
3. The court for a child
4. The court can state that the treatment is lawful for an adult
5. The Mental Capacity Act 2005 (England) allows donors to permit the done to make decisions on their behalf when the donor no longer has capacity
6. The Adults with Incapacity Act (Scotland)

Question 19

how can consent be achieved?

Answer 19

1. Must judge competency if any doubt; but there is a presumption of competency at law
2. Must give sufficient information for them to make a rational decision
3. In a language they understand
4. Do not have to give so much information that they would never have the treatment
5. Must obtain consent for treatment
6. Must obtain consent for the delivery method

Question 20

how do we judge competence?

Answer 20

• Evidence that the patient is able to understand the information given
• Evidence that the patient is able to understand the consequence of what that information
means
• Evidence that the patient is capable of making choices
• That the choices they make are reasonable
• Their decision in making that choice is based rationally and is not randomly
• Assumption of competency in adults
• In Scotland the Children’s Act presumes competence to any child aged 12 or over

Question 21

in Scotland at what age is a child presumed competent?

Answer 21

12

Question 22

list the steps in the consenting process

Answer 22

1. If necessary competency test
2. Examination
3. Diagnosis
4. DDx
5. Treatment planning
6. Treatment alternatives
7. Risks/benefits
8. No treatment may be an option

Question 23

people who lack capacity

Answer 23

• If at the time and in the particular circumstances they are unable to make the decision for themselves
• Cannot be made simply according to their age or appearance
• Or because a condition of his or an aspect of his behaviour might lead others to make unjustified assumptions about his behaviour
• Does not apply to <16

Question 24

who is unable to make a decision?

Answer 24

• Unable to understand the relevant information
• Unable to retain or weigh
• Unable to communicate
• Unable to decide one way or the other or the consequences of failing to decide

Question 25

how to act in someone’s best interests

Answer 25

• Dynamic
• Would it be in their best interest to do nothing?
• Must consult if practical the views of all those responsible for and caring for the individual
• Must consider whether the person would be capable at another time

Question 26

treating the individual in regards to incapacity

Answer 26

• Must take reasonable steps to ascertain if the patient lacks capacity
• Must take reasonable steps to ascertain if it will be in the patient’s best interests
• The Act does not incur liability to the doctor that they would not have had had the patient been able to consent themselves – negligence

Question 27

what is the main difference between Scots and English law?

Answer 27

English - literally or purposively

Scots - purposively

Question 28

Discuss the Adults with Incapacity (Scotland) Act 2000

Answer 28

Treating the Individual
• Must take reasonable steps to ascertain if the patient lacks capacity
• Must take reasonable steps to ascertain if it will be in the patient’s best interests

There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention

Where it is determined that an intervention is to be made, such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention

In determining if an intervention is to be made and if so what intervention is to be made, account should be taken of:

1. The present and past wishes and feelings of the adult so far as they can be ascertained by any means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise) appropriate to the adult
2. The views of the nearest relative and the primary carer of the adult, in so far as it is reasonable and practicable to do so
3. The views of:
   a. any guardian, continuing attorney or welfare attorney of the adult who has powers related to the proposed intervention and
   b. any person whom the sheriff has directed to be consulted,
   i. in so far as it is reasonable and practicable to do so
   c. The views of any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention , where these views have been made known to the person responsible, in so far as it is reasonable and practicable to do so.

Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under this Act or under any order of a sheriff in relation to an adult shall, in so far as it is reasonable and practicable to do so, shall encourage the adult to exercise whatever skills he has concerning his property, financial affairs or personal welfare, as the case may be, and to develop new such skills

Question 29

according to the Adults with Incapacity (Scotland) Act 2000 what does adult mean?

Answer 29

a person who has attained the age of 16 yrs

Question 30

according to the Adults with Incapacity (Scotland) Act 2000 what does incapable mean?

Answer 30

incapable of:
acting or
making decisions or
communicating decisions or
understanding decisions or 
retaining memory of decisions 

As mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack of deficiency in a faculty of communication if that deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise; and “incapacity” shall be construed accordingly

Question 31

the courts powers according to the Adults with Incapacity (Scotland) Act

Answer 31

• The Court and the Sheriff have wide powers including:
• Determining that information may not be released to the nearest relative, and
• That another person is appointed to act as the nearest relative

Question 32

the public guardian according to the Adults with Incapacity (Scotland) Act

Answer 32

• The Accountant of Court shall be the Public Guardian
• Functions
o Supervise any guardian or Court appointee
o Hold and maintain documentation related to cases
o Deal with complaints related to property or financial affairs
o Provide guardians and attorneys when required for financial affairs
o Consult the Mental Welfare Commission and the local authority on cases and matters related to the functions of the Act

Question 33

the mental welfare commission according to the Adults with Incapacity (Scotland) Act

Answer 33

• Exercise protective functions in respect of an adult if the adult is subject to an intervention or guardianship order in so far as the order relates to the personal welfare of the adult
• Visit the adult and bring to the attention of the Health Board , the local authority or any other body any matter related to the personal welfare of the adult that they consider ought to be brought to their attention
• Similar functions to the Public Guardian in relation to welfare

Question 34

codes of practice according to the Adults with Incapacity (Scotland) Act

Answer 34

• The Scottish Ministers prepare or cause to be prepared for their approval and from time to time to revise or cause to be revised for their approval, codes of practice containing guidance as to the exercise of their functions by
• Local authorities and their officers
• Continuing and welfare attorneys
• Persons authorised under intervention orders
• Guardians
• Withdrawers
• Managers of authorised establishments
• Supervisory bodies
• Persons authorised to carry out medical treatment or research under Part 5

Question 35

continuing power of attorney and welfare power of attorney

according to the Adults with Incapacity (Scotland) Act

Answer 35

• Continuing power of attorney – related to finance and property
• Welfare attorney – related to personal welfare
• Must be written and subscribed by the granter whilst they have capacity, clearly expressing the intention with a certificate of a solicitor or other prescribed class confirming:
o He has interviewed the granter immediately prior to the granting,
o He has knowledge from knowing or consulting those with knowledge of the granter that the granter understands the nature and extent of the power
o There is no undue influence or duress
o The document has to be registered for the power to be effective with the Public Guardian

Question 36

Management of Residents’ Finances in those Institutions Named in the Act according to the Adults with Incapacity (Scotland) Act

Answer 36

• Applies to those residents who have been examined by a medical practitioner and he has issued a certificate.
• Can manage all their finances including pensions Benefits and moveable property

Question 37

what does section 5 of the Adults with Incapacity (Scotland) Act relate to?

Answer 37

medical treatment and research

Question 38

section 5 of the Adults with Incapacity (Scotland) Act: authority of persons responsible for medical treatment

Answer 38

Authority of persons responsible for medical treatment
• This Section applies where the medical practitioner primarily responsible for the medical
treatment of an adult:
o is of the opinion that the adult is incapable in relation to a decision about the medical
treatment in question; and
o has certified in accordance with subsection (5) that he is of this opinion
• Subsection (2): During the certificated period shall have the authority to do what is reasonable
in the circumstances, in relation to the medical treatment , to safeguard or promote the
physical or mental health of the adult
o This authority shall also be exercised by any other person who is authorised by the
medical practitioner primarily responsible for the medical of the adult to carry out
medical treatment and who is acting:
§ on his behalf under his instructions; or
§ with his approval or agreement
o The authority does not authorise
§ the use of force or detention unless it is immediately necessary in the
circumstances
§ Action inconsistent with any decision by a competent court
• Subsection (5): A certificate for the purposes of the Act shall be in the prescribed form and
shall specify the period during which the authority conferred by subsection(2) shall subsist,
being a period which –
o The medical practitioner primarily responsible considers appropriate to the condition
and circumstances of the adult; but
o does not exceed one year from the date of the examination giving rise to the
certificate

Question 39

section 5 of the Adults with Incapacity (Scotland) Act: Medical Treatment where there is an Application for Intervention or Guardianship Order

Answer 39

• Cannot carry out treatment in this circumstance if the medical practitioner is aware of the
application unless authorised by another enactment or rule of law or for the preservation of
life or the prevention of serious deterioration in his medical condition
• Similar restrictions apply where a guardian or welfare attorney has been appointed or a
person has been authorised under an intervention order.
• Appeals would require to be made to the Court to carry out normal treatment

Question 40

section 5 of the Adults with Incapacity (Scotland) Act: authority for research

Answer 40

• No surgical, medical, nursing, dental or psychological research shall be carried out on any adult
who is incapable in relation to a decision about participation in the research unless:
• (a) research of a similar nature cannot be carried out on an adult who is capable in relation to
such a decision and
• (b) In the circumstances below:
• The purpose of the research is to obtain knowledge of the causes, diagnosis, treatment or
care of the adult’s incapacity or the effect of any treatment etc

Question 41

The Effect of the Smoking, Health and Social Care Act (Scotland) 2005 section 35

Answer 41

Dentists are able to sign Incapacity Certificates to cover dental treatment
• Dentists and other Health Care Professionals also have been given that right
• The legislation has been rewritten to take this into account
• It therefore is important to be sure who has overall responsibility for the patient

Question 42

purpose of the Adults with Incapacity (Scotland) Act:

Answer 42

• To treat those who cannot consent with dignity
• To permit patients who cannot consent to have the treatment that they would wish to have
if they could consent
• To be humane, just and caring

Question 43

discuss Gillick compenecny

Answer 43

o In England a child under the age of 18 can consent
§ Aged 16 and 17
• A child’s affirmative consent (assent) to investigation or
treatment deemed in their best interests, having achieved the
age of 16, cannot be overruled by anyone with parental
responsibility, although the court may in its capacity as parens
patriae. In fact, Lord Donaldson MR, summarises that: “A minor
of any age who is ‘Gillick competent’ in the context of particular
treatment has the right to consent to that treatment, which again
cannot be overridden by those with parental responsibility, but
can be overridden by the court…”.1
§ Younger than 16
• Children under 16 can consent to medical treatment if they
understand what is being proposed. It is up to the doctor to
decide whether the child has the maturity and intelligence to fully
understand the nature of the treatment, the options, the risks
involved and the benefits.
§ A child who has such understanding is considered Gillick competent (or
Fraser competent). The parents cannot overrule the child’s consent when
the child is judged to be Gillick competent. For example, a 15-year-old
Gillick competent boy can consent to receiving tetanus immunisation
even if his parents do not agree with it.
o The Age of Legal Capacity (Scotland) Act 1991
§ “A person under the age of 16 shall have legal capacity to consent on his
or her own behalf to any surgical, medical or dental procedure or
treatment where, in the opinion of the qualified medical practitioner
attending him, he is capable of understanding the nature and possible
consequences of the procedure or treatment.
§ However, there is speculation that in Scotland that a child can be overruled
by a parent with parental responsibility if the child refuses consent
and the parent consents, particularly if the treatment is in the patient’s
best interests.
§ The English cases, Re R and Re W are prevailing authority in Scotland and
they have been used to support a child with capacity in Scotland being
able to refuse consent contrary to the parent

Question 44

list the difficulties regarding consent

Answer 44

parental responsibility and children’s rights
Gillick Competency
Children’s rights
Those without mental capacity and advance directives
organ and tissue donation
when might not gaining appropriate consent land a doctor in prison

Question 45

discuss those without mental capacity and advance directives

Answer 45

o The Mental Capacity Act 2005 enshrined in statute law the right of an adult with
capacity to make an advance directive to refuse specific treatment at a point in
the future when they lack capacity.
o Certain criteria must be met to determine if an advance directive is legally binding.
o If an advance directive is refusing life sustaining treatment, it must be in writing,
signed, and witnessed and include a clear written statement that it applies to the
specific treatment, even if life is at risk.
o the advance directive must be valid at the time it is put into effect. If there is
evidence to suggest the person has changed his or her mind— for example, if they
have done something that goes against the advance directive—this would make
the advance directive invalid.
o The advance directive must be applicable to the current circumstances. If it does
not specify the treatment that is now proposed, or if the circumstances envisaged
at the time of writing have now changed, then the advance directive may not be
applicable.
o Factors to consider include the length of time that has passed since the advance
directive was made and changes in personal life that may affect the circumstances
the person is now in