Consent

Question 1

Describe the difference in how scottish law is interpreted vs english/welsh law?

Answer 1

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)

Question 2

Define negligence?

Answer 2

A failure in duty, the burden is on the claiment to prove forseeable damage that you (the doctor) failed to address

Question 3

Define a breach of consent?

Answer 3

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.

Question 4

Describe the process of gaining consent?

Answer 4

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

Question 5

What defines a patient as competent to give consent?

Answer 5

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?

Question 6

List the legislation references patients incapable of giving consent?

Answer 6

Adults with Incapacity (Scotland) Act 2000

Mental Capacity Act 2005 England

Question 7

What is a Public Guardian?

Answer 7

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

Question 8

What does a public guardian do?

Answer 8

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

Question 9

What does the Mental Welfare Commission do?

Answer 9

MWC exercises protective functions for any adult subject to an intervention or guardianship order

Question 10

What are the types of power of attorney under the Adults with Incapacity Act 2000?

Answer 10

Continuing power of attorney - Relates to property and financial matters

Welfare Attorney - Relates to personal welfare

Question 11

What is a power of attorney?

Answer 11

Control over a person’s assets or personal welfare that is written by the granter while they retain capacity and certified by a solicitor

Question 12

How can a medical practitioner take over the patient’s care choices

Answer 12

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.

Question 13

Whats the maximum duration of an Incapacity Certificate?

Answer 13

1yr

Although the duration depnds on the condition causing incapacity & the circumstances

Question 14

What if the doctor fills out an incapacity certificate but the patient has a guardian?

Answer 14

IF the guardian doesn’t agree with the doctor the doctor can appeal to a court.

Question 15

Who can sign an incapacity certificate?

Answer 15

As of the Smoking, Health & Social Care Act (Scotland) 2005 dentists and other health care professionals can

Question 16

Define a patient’s “Best Interests”?

Answer 16

To save their life or improve/prevent deterioration in their physical & mental health

Question 17

What would make us consider a patient lacking capacity?

Answer 17

IF they cant:

• Understand information
• Retain information or use it in decision making
• Communicate a decision
• Make a decision

Question 18

Define an Advance Directive?

Answer 18

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

Question 19

What is Gillick Competency?

Answer 19

A child can be considered Gillick Competent if they are mature and intelligent enough to understand the treatment option & risks.

Question 20

What are the age boundaries for Gillick Competency?

Answer 20

<16yr olds can be called gillick competent

Question 21

In England how does consent work for <18s?

Answer 21

<18s can give affirmative consent to treatment that only a court can overrule

<16s can too if considered gillick competent by the doctor

Question 22

In Scotland what legislation applies to minors and consent?

Answer 22

The Age of Legal Capacity (Scotland) Act 1991

Question 23

How does consent work for >16s in Scotland?

Answer 23

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

Question 24

How is organ donation consented in the UK?

Answer 24

Its opt in in Scotland, England & NI.

In Wales its Opt Out under the Wales Human Transplantation Act 2013

Question 25

If an adult without capacity has no welfare attorney or guardian what do you do?

Answer 25

Fill out an Incapacity Certificate and treat in the patient’s best interests

Question 26

26. A If an adult without capacity has a welfare attorney or Welfare Guardian?

Answer 26

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

Question 27

26. B If the MWC agrees or disagrees with you what do you do?

Answer 27

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.