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Medicine > Consent > Flashcards

Consent Flashcards

1
Q

3 reasons an incompetent patient may be unable to consent

A
  1. In an EMERGENCY - unconscious P. Doc can give lawful treatment without consent provided it is NECESSARY and UNREASONABLE TO WAIT for consent
  2. Incompetent patients - docs do what is in patient’s best interest
  3. If P is a minor, parents can consent on their behalf, or if they won’t consent, docs can go to court and apply for permission in the best interest of the P.
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2
Q

Different reasons for decision of treatment

A
  1. Availability of resources
  2. Patient have mental capacity?
  3. Is the child mature - Gillick competence?
  4. Statute - can in some cases force treatment due to public interest e.g. chloera + typhus
  5. Doc - P best interest
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3
Q

What charges will a doc get if they treat without consent?

A

Criminal law - may be guilty of assault of be sued for tort of trespass to the person (battery)

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4
Q

Border v Lewisham and Greenwhich NHS Trust

A

Held negligent of a doctor not to secure consent for treatment

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5
Q

Charlie Gard Case

A

Parents wanted child to have treatment, medics thought they should take it off him, went to SC. Medics ‘won’ - no right for patients to demand treatment

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6
Q

What is the statute concerning mental capacity?

A

Mental Capacity Act 2005, s2 & 3

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7
Q

Burden of proof for MCA 2005

A

It is a function not a status test, burden of proof on docs to prove incapacity

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8
Q

S1 MCA 2005

A

Presume competence unless there is evidence. Even if P mentally ill, presume competence

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9
Q

S2 MCA 2005

A

A person lacks capacity if at the MATERIAL TIME he is unable to make a decision for himself because of an impairment or disturbance of the mind/brain

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10
Q

S3 MCA 2005

A

Draws on Re C common law test for competency

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11
Q

Re C

A

Common law test for competency: (1) Understand info relevant to decision (2) Retain that info (3) Use or weigh that info as part of the process of making that decision (4) Communicate that decision

C was an adult patient with paranoid schizophrenia suffering from gangrene. Docs advised there was an 85% chance that C would die unless the infected foot was amputated. C refused op.
Held: C was competent, had capacity and so could refuse treatment.

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12
Q

Re MB

A

Very heavily pregnant woman in labour, told needed C-section. She agreed. Did not agree to anaesthetic needed prior to C-section. Said the needle phobia unbalanced her mental capacity to make that decision at the material time.
Held: P lacked capacity short-term, treatment could be carried out without consent.
Butler-Sloss LJ “impairment or disturbance of some mental function”
Note * competent P can refuse treatment even if this will result in their death + of foetus

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13
Q

Why is patient consent important?

A

Deep rooted ideas of autonomy and self-determination

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14
Q

Requirements for valid consent

A

Mental capacity; be sufficiently informed; be acting voluntarily

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15
Q

Benefits/disadvantages of standard consent form

A

Even though signed, can still argue you were not informed properly
Lead to best practice or defensive practice?
Emphasises patients right to refuse treatment, to an explanation of treatment and to ask questions

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16
Q

What is an advance directive?

A

Where all consent is in ‘advance’.
Only refusals of treatment - Re Burke said cannot request certain treatment
If in doubt, ignore (MCA 2005 s26(2))
Consent before treatment - but can be problematic if given a while before treatment - P has capacity to amend earlier consent.

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17
Q

Consent serves a dual function

A
  1. Protects docs from charge of non-consensual touching

2. Protects autonomy of competent patient: right to decide for themselves what should be done to their body

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18
Q

Limits on consent

A

Some procedures - even with consent, remain criminal e.g. cannot consent to being killed
R Brown - cannot consent to GBH

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19
Q

Airedale NHS Trust v Bland - Lord Goff

A

Docs sought declaration that was acceptable to turn off the life support machines which had held a P in a vegetative state for 2+ years. Held: yes, declaration could be obtained. Where a person unable to give or with-hold their own consent, docs are entitled to decide what is in P’s best interest. May be to discontinue treatment.
Lord Goff: Said should respect the wishes of a patient, even if they are ‘unreasonable’

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20
Q

Consent - sufficient info

A

Chatterson v Gerson - Doc failed to explain possible consequences of an op and on subsequent corrective op. Held: failure to explain GENERAL NATURE of op negatived P’s consent. Doc can be held negligent if P demonstrates he would not have accepted the unexplained risk (if general nature not explained)

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21
Q

Voluntariness

A

Re T - after a visit from her mother, a Jehovah Witness, T refused a blood transfusion. Held: the will of T had been overborne by her mother, the treatment refusal was not voluntary not P’s own so could be overruled.

22
Q

Voluntariness - prisoners

A

Freeman v Home Office - F been injected with certain drugs for treatment of personality disorder, by the prison medical officer. F complained his consent was not freely given because doc was also a disciplinarian at the prison. Although COA upheld finding that F had given valid consent, it was aware of need for vigilance when a patient may be in vulnerable position

23
Q

Re Richardson

A

Fraud can vitiate consent.
Dentist suspended from practice by General Dentist Council but continued to treat patients. COA held P’s did give valid consent as had not been mistaken about identity of person carrying out procedure, only his qualifications.

24
Q

R v Tabussum

A

Fraud can vitiate consent
CoA held consent of woman to breast examination was not valid because they mistakenly believed the examiner was medically qualified. Held: mistake went to nature of acts - fact person wasn’t medically qualified changed nature of exam

25
Q

Procedures contrary to public policy despite consent

A

Assisted killing, female circumcision
Attitudes change over time - Bravery v Bravery, Denning said male sterilisation was ‘plainly injurious of public interest’

26
Q

Defence of medical necessity

A

Is it reasonable to wait to give treatment when P has mental capacity?
Docs must limit themselves to necessary treatment only

27
Q

Marshall v Curry

A

Removal of diseases testicle during hernia op. Held: Doc est defence of necessity: unreasonable to wait for later op

28
Q

Murray v McMurchy

A

Sterilisation in course of a C-section, held: damages recoverable as op performed was convenience rather than necessity

29
Q

Re F

A

36 yr old mentally handicapped woman. Her mum wanted her sterilised as she was sexually active but felt pregnancy/child birth would be disastrous for her. Held: sterilisation allowed, in Ps best interest. Lord Goff: ‘Need to care for them obvious’ ‘act in best interest’

30
Q

Is lack of capacity as tactic to allow treatment refusals to be overriden?

A

Re MB - pregnant needle phobia

Rochdale Healthcare v C - pain and stress of labour rendered her mentally incompetent

31
Q

Re T

A

The more grave the consequences of treatment refusal, the more difficult to prove capacity
Lord Donaldson: ‘The more serious the decision, the greater the capacity required’

32
Q

MCA 2005 S4 - factors to determine best interest

A

Views of patient when competent, beliefs and values of patient, views of carers as to P’s best interest

33
Q

ECHR rights

A

Art 2 - right to life
Art 3 - prohibition of torture
Art 8 - privacy

34
Q

Creative reasoning - Re Y

A

Y was mentally handicapped & incompetent. Was a good match for bone marrow for sister. Could not consent to treatment was was not in her own interests. Held: donation in Y’s best interest as her care by mother would be affected if her mother (primary carer) became ill because of sister’s condition and any deterioration

35
Q

Re (Burke) v GMC - best interest

A

“We do not think it is possible to attempt to define what is in the best interest of a patient by a single test, applicable in all circs.”

36
Q

Airedale NHS Trust v Bland

A

Bland was victim of Hillsborough disaster. In persistent vegetative state. Parents and docs asked court for permission to withdraw artificial nutrition and hydration and allow him to die. Permission granted. Held in his best interest NOT to prolong his life.

37
Q

Re A (conjoined twins)

A

Docs applied to court for order of separation, even though no consent from parents. Held: allowed - held separation was in best interest of both girls, even if would cause M’s death.
Deprived of right to bodily integrity and autonomy

38
Q

Competent adults (over 18)

A

Have right to consent (informed, voluntary and have capacity) and refuse treatment (Re C)

39
Q

Consent children 16-18

A

Children between 16-18 are deemed competent to consent under S8 Family Law Reform Act 1969

40
Q

Can children under 16 consent?

A

If Doc considers them to have ‘Gillick competence’

41
Q

Gillick v West Norfolk and Wisbech HA

A

Gillick objected to dept. health guidance that contraceptive advice and treatment could be given to those under 16 without consent or knowledge of parents. G asked for confirmation none of her daughters would be seen/advised. HoL said not possible.
Est a test for competence and consent to own treatment.

42
Q

Gillick test for competence and consent to own treatment.

A

Is P ‘capable of understanding what is proposed and of expressing own views’ - no age limit, doc’s decision as to their competence

43
Q

Re C (a minor)

A

Parent’s have no right to demand treatment if medical team do not believe it is in child’s best interest

44
Q

Re S (a minor)

A

Child - parents refused treatment as were Jehovah Witness. Docs applied to court, who ordered the blood transfusion

45
Q

U18’s can consent but cannot refuse treatment

A

Re R (a minor) - Younger patient can consent to treatment but refusal can be overriden by parent/court if in their best interest

46
Q

Re E

A

E, Jehovah’s Witness suffering from Leukemia. Doc’s wanted to give him blood transfusion. E’s refusal overriden by court for 3 years. Once he turned 18, refusal was valid. Died shortly after

47
Q

Problems with advance directives

A

Where time has elapsed - did P intend to content to remain operative? Circs may have changed, or their values/views

48
Q

Re AK

A

19 yr old - motor neurone sufferer. Requested removal of ventilation 2 weeks after he lost the ability to communicate. Held: decision was (i) recent, (ii) made in fullest possible knowledge of impending reality, (iii) genuine expression of considered wishes; (iv) unlawful to continue ventilation

49
Q

Bolam v Friem

A

*Old
No negligence because amount of info given conformed to body of responsible opinion in medical circles. Irrelevant that another body of opinion in disagreement

50
Q

Sidaway v Bethlem Royal Hospital

A

Diplock: Bolam applies
Templeman: Bolam applies but Doc should disclose special dangers and risks that would be significant to the particular patient
Bridge (+ Keith): Bolam but judges to scrutinise as sometimes disclosures of a particular risk is necessary for a patient to make an informed choice where ‘substantial risk of grave adverse consequences’
Scarman: P has right to be informed of ‘material’ risks - prudent patient test

51
Q

Montgomery v Lanarkshire Health Board

A

Diabetic pregnant woman not warned about significant risks of shoulder dystocia in delivery of son. Held: Docs negligent. Overruled Sidaway and ‘rejected reasonable doc’ test. Est a duty of care to WARN of MATERIAL RISKS

Medicine (3 decks)

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