Consent and Capacity Flashcards
What are the four basic elements of consent?
1) Voluntary
2) Patient Capable
3) Consent is specific to treatment
4) Informed
What is meant by voluntary with respect to consent?
- Consent is given free of coercion or pressure (ex. from family members)
- Physician must not deliberately mislead the patients about the proposed treatment
With respect to consent, what is meant when they say the patient must be capable?
- Must be able to understand and appreciate the nature and effect of the proposed treatment
Explain how consent must be specific?
- Specific to the procedure being proposed
- Specific to provider performing procedure (ex. pt. should be informed if students will be involved)
What must you do to ensure a patients consent is informed?
- Nature of treatment and its effects
- All significant risks, special and unusual risks
- Alternative options
- Consequences of declining treatment
- Answer patient questions
- Disclose all common (>1/200 chance)
- Disclose all serious adverse events (i.e.death) even if remote
- “Reasonable person test”
What is the reasonable person test
- Give all the information that a reasonable person would want to know during consenting process
- Disclose minor risks that are common and serious risks even if infrequent, especially if relevant to pt. Ex. hearing loss in musician, infertility with D and C in young woman
In what situations is it ok to administer treatment to an incapable patient during an emergency situation?
- Patient is experiencing extreme suffering
- Patient is at risk of sustaining serious bodily harm if treatment is not administered promptly and consent cannot be obtained for SDM
- Emergency treatment should not violate prior expressed wishes of the pt (ex. jehovah card)
There are two mental health legislative reasons where consent is not required what are they?
1) involuntary detention (Ex. Form 1)
2) Community treatment orders
In which public health circumstance is consent not required for treatment?
- Public health legislation allowed medical officers of health to detain, examine and treat patients without their consent to prevent transmission of communicable diseases (ex. treating a pt with TB who refuses medication)
What charge can be handed to a physician who provides treatment without valid consent?
- Battery if no consent
- Negligence if poorly informed consent is provided
If a patient argues that consent was not provided for their treatment and takes you to court who has the onus of proof?
- The onus of proof that valid consent was not obtained rests with the patient (innocent until proven guilty)
How is consent obtained from a patient deemed incapable in a non-emergent situation?
- Obtain informed consent from the SDM
What guiding principals should a substitute decision maker follow?
- Act in accordance with the wishes previously expressed by pt when capable
- If wishes unknown:
- consider their values and beliefs
- will their well being be affected by treatment choice
- Risk vs Benefit
- Would less intrusive treatment be equally as beneficial
True or False: A SDM’s decision should be challenged by the physician if they believe they are not acting according to the patients wishes?
True
- or if wishes unknown not abiding by guiding principals
What is an instructional advanced directive?
- allows patients to exert control over their care when no longer capable
- “living will”
- Takes effect once the patient is incapable
What happens if a physician believes that a parent is not acting in their child’s best interests with respect to medical treatment?
- If child is capable they can provide consent
- If child not capable, an appeal must be made to the local child welfare authorities
What is a fiduciary duty?
- A legal duty to act soley in another party’s best interest
- You may not profit the relationship with principals (money paid by the patient) unless you have their expressed consent (ie. they agree to pay for cosmetic procedure or uncovered test)
What is negligence?
- Negligence (or malpractice) is a form of failure on the part of the physician in fulfilling their fiduciary duty in providing appropriate care and leading to harm of the patient or abuse of their trust
What are the 4 basic elements needed for a physician to be said to negligent?
1) A duty must be owed to the patient (ie. Dr-Pt relationship)
2) A breech of the standard of care
3) Some harm of injury to the patient
4) The harm of injury must have been caused by the breech of the duty of care
How is the standard of care determined in the physicians duty to care?
- Defined as one that would reasonably be expected under similar circumstances of an ordinary, prudent physician of the same training, experience, specialization and standing
How long does a patient have to take legal action against a physician? What can change this time window?
- 2 years
- The time starts once the patient is made aware of the error causing harm
- ex. if they find out something done 5 years ago caused them harm they have 2 years from that time
What is therapeutic privilege? Is it still used today?
- withholding information in the belief that disclosure of said info would itself, lead to severe anxiety, psychological distress or physical harm to the patient
- No should not be used
