Consent and Confidentiality

Question 1

Define consent.

Answer 1

Consent is the voluntary and continuing permission of the patient to receive a particular treatment based on an adequate knowledge of the purpose, nature, and likely risks including the likelihood of its success and any alternatives to it. Permission given under undue or unfair pressure is not consent.

Question 2

Why is consent important ?

Answer 2

• Legally: Treating a competence patient without consent is a criminal offense (assault)
• Good clinical care: Based on the principle of autonomy

Question 3

What are the main types of consent ? Give an example for each.

Answer 3

• Implied (i.e. actions, e.g. baring arm of venipuncture)

- Expressed (i.e. deliberate, clear consent e.g. written or oral)

Question 4

Is there a legal requirement for written consent over oral consent ?

Answer 4

No, rarely a legal requirement for written consent (however, may be required under Human Fertilization and Embryology Act + some mental health situations)
Need evidence but not proof of consent

Question 5

Identify situations where consent is invalid despite proof of written consent.

Answer 5

Written consent merely serves as evidence of consent: if the elements of voluntariness, appropriate information and capacity have not been satisfied, a signature on a form will not make the consent valid.

Question 6

What types of treatment is written consent good practice (although in most cases still not required) for ?

Answer 6

Surgery

Question 7

Describe the principles of consent and confidentiality as listed by the GMC.

Answer 7

Emphasis on “partnership”.
Emphasis on providing information.
Places responsibility for ensuring patients have information they need squarely upon the doctor.
Specifies what you must inform patients.

Question 8

Summarise the “Adults with Incapacity (Scotland) Act 2000”.

Answer 8

For the purposes of this Act, and unless the context otherwise requires— “adult” means a person who has attained the age of 16 years; “incapable” means incapable of— (a) acting; or (b) making decisions; or (c) communicating decisions; or (d) understanding decisions; or (e) retaining the memory of decisions

– Therefore, it applies to all people aged 16 and over who lack capacity to make some or all decisions for themselves

– The Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so.

Question 9

Describe the relationship between consent and capacity.

Answer 9

Capacity is necessary to give valid consent.

Question 10

True or false: nobody can consent on behalf of an adult with capacity. Even if they sometimes make unwise decision ?

Answer 10

True

Question 11

What is the right course of action to take if an adult patient with capacity makes a decision the doctor sees as unwise ?

Answer 11

Document carefully, offer second opinions and time for the patient to reconsider.

Question 12

What is the piece of legislation concerning lack of capacity in adults in Scotland ? In England and Wales ?

Answer 12

Adults with Incapacity Act

Mental Capacity Act

Question 13

Summarise the Mental Capacity Act.

Answer 13

Principle 1 - benefit
Principle 2 - least restrictive option
Principle 3 - take wishes of the person into account
Principle 4 - consult with relevant others
Principle 5 - encourage the person to use existing skills and develop new skills

Question 14

Summarise GMC Guidance on capacity issues in children.

Answer 14

• Involve the child as much as possible
• Does the child have capacity to consent, i.e. can they understand (nature, purpose, possible consequences), retain + use + weight information, and communicate decision ?
• Time and decision specific

Question 15

Describe the legislation around the consent of young persons 16 and under 16 in Scotland and England.

Answer 15

SCOTLAND (Statutory power)

• Age of legal capacity allows a person aged over 16 to enter into any transaction, and a person under 16 shall have legal capacity to consent on his own behalf to any surgical, medical, or dental procedure or treatment where he/she is capable of understanding the nature and possible consequences of the procedure/treatment (latter unless overruled by court)
• If a child (i.e. under 16) lack’s capacity you should ask for the parent’s consent (same as rest UK)
• > 16 years old lacking capacity treated as an adult with incapacity
• Parents cannot authorize a treatment a competent young person has refused (should seek level advice)

ENGLAND (Statute and Common law basis)
-16 year old and over can consent to treatment
-Children under 16 may have capacity to consent depending on their maturity and ability to understand what is involved.
-BUT parents can consent on behalf of a 16-17 year olds in their best interests
AND 16-17y old can be treated without parental consent although their views might be important to assess best interests
-Law of overriding young people’s competent refusal is complex
-If a child (i.e. under 16) lack’s capacity you should ask for the parent’s consent

Question 16

Define Gilick competence and Fraser guidelines.

Answer 16

• Gilick competence seeks to determine whether a child (under 16) has a capacity to consent.
• Fraser guidelines specifically relate only to contraception and sexual health (i.e. specific issue of giving contraceptive advice and treatment to those under 16 without parental consent).

Question 17

What can a competent child’s consent to treatment be overruled by ?

Answer 17

Court, over-riding duty to act in best interests of a child, children should be involved as much as they are able.
(not parents)

Question 18

Can a doctor act if they believe the parents of a young person, or an adult, without competence are not acting in the patient’s best interests ?

Answer 18

Yes.
Discuss with your seniors, seek advice of local child protection team (for young people) or protecting vulnerable adults team (for adults with incapacity)

Question 19

Which information must the patient be provided (as long as they want/need it) for the patient’s consent to be valid ?

Answer 19

• Diagnosis and prognosis
• Any uncertainties about diagnosis and prognosis, including options for further investigations
• Options for treating or managing the condition, including the option not to treat
• Purpose and what it will involve
• Possible risks, benefits, burdens, likelihood of success for each option
• Right to seek a second opinion
• Bills they have to pay
• Conflicts of interest that you or your organisation may have

Question 20

What is the proper course of action if a patient does not want information ?

Answer 20

♦ Explore reasons why patient does not even want to know the basic information and explain why it is important
♦ Respect wishes where patient do not wish to have information but provide basic information needed to make a decision
♦ Try to overcome obstacles to providing information
1) Pressure on a doctor’s time: for instance by getting another member of the healthcare team to speak to the patient, patient information leaflets, advocacy services, support groups

2) Special needs of the patient

Question 21

Briefly summarise the Sidaway case and explain how it affected the Bolam principle.

Answer 21

The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation.
She sued.

The Sidaway case extended the Bolam principle to the quality of information provided to a patient about a given treatment.
i.e. You could not sue your doctor for failing to tell you about risks if other reasonable doctors would not have told you either.

Question 22

What is the GMC guidance on the extent to which one should go about telling patients about side effects ?

Answer 22

The amount of information about risk that you should share with patients will depend on the individual patient + what they want or need to know.
You must tell patients if an investigation or treatment might result in a serious adverse outcome, even if the likelihood is very small”

Question 23

What factors should a doctor take into consideration when deciding whether or not to tell the patient about a particular side effect.

Answer 23

• Incidence of the risk
• Nature of the risk
• Effect it would have on patient’s life
• Importance place by patient on achieving the benefits of the procedure
• Alternative treatments available (and associated risks)

Question 24

Why must the provision of information to the patient to obtain consent involve a dialogue ?

Answer 24

To ensure that the patient understands the seriousness, anticipated benefits and risks, reasonable alternatives. (because patient may place particular importance on a particular risk he/she does not know is involved with the operation)

Question 25

Is it every acceptable for a physician to withhold information from a patient ?

Answer 25

Yes, the doctor is entitled to withhold information about a risk to the patient if he/she reasonably considers that its disclosure would be seriously
detrimental to the patient’s health.
RARE

Question 26

How does obtaining consent work in emergency situations where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision ?

Answer 26

The doctor is also excused from conferring with the patient in circumstances of necessity (such as in emergency situations)

Question 27

What is the course of action if someone seeks confidential patient information ?

Answer 27

Weight the benefit to the individual or society against the patient’s interest in keeping the information confidential.
i.e. weight the harm likely to arise from non-disclosure against the harm that may arise from disclosure
HOWEVER, seek consent for disclosure first, if safe to do so (i.e. if it does not put someone/an investigation at risk)

Question 28

What are situations in which confidentiality should be breached ?

Answer 28

-Need to protect others: e.g. risk of death or serious harm
-Assist in the prevention, detection or prosecution of a serious crime, particularly crimes against the person
e.g.
♣ patients with seizures who did not inform DVLQ
♣ patient with substance misuse abuse issues and who are responsible for children
♣ Healthcare professionals where there are concerns wrt fitness to practice
♣ all citizens (including doctors) must tell the Police if they become aware of information that they believe would help prevent a terrorist act, or secure the arrest or prosecution of someone involved in terrorism (so have to tell them proactively rather than just answer police’s questions)

Question 29

Which piece of legislation does patient confidentiality come under ?

Answer 29

Data Protection Act

Question 30

Which bodies/organisation can ask for disclosure of information ?

Answer 30

• Court orders

- GMC and NMC have powers to compel disclosure of information

Question 31

Should gun and knife wounds be reported ? What is GMC guidance on the subject ?

Answer 31

KNIFE
Yes, unless accidental or self-harm

GUN
Yes, even if accidental

GMC says you should inform police if patient arrives with gun or knife wound, but personal information should not usually be disclosed upon first contact and subsequently it is up to the patient to decide if they want to talk to the police.

Question 32

What is the best course of action if a parent requests information about their own child ?

Answer 32

• Parental responsibility significant
• Age/competence of patient also significant (does the patient have capacity to make own decisions as to disclosure ?)
• Protect third party information (including for instance address of parent with whom child resides)

Question 33

What is the best course of action wrt confidentiality if you diagnose a patient with a condition potentially making them unfit to drive ?

Answer 33

• Dr should explain that their condition may affect their ability to drive (if the patient is incapable of understanding this advice because of dementia, for example, you should inform the DVLA or DVA immediately) + that they have a legal obligation to tell DVLA about the condition
• If a patient refuses to accept the diagnosis, or the effect of the condition on their ability to drive, you can suggest that they seek a second opinion, and help arrange for them to do so. You should advise the patient not to drive in the meantime, keeping a record of advice.
• If a patient continues to drive when they may not be fit to do so, you should make every reasonable effort to persuade them to stop. As long as the patient agrees, you may discuss your concerns with their relatives, friends or carers.
• If you do not manage to persuade the patient to stop driving, or you discover that they are continuing to drive against your advice, you should contact the DVLA or DVA immediately and disclose any relevant medical information, in confidence, to the medical adviser.
• Before contacting the DVLA or DVA you should try to inform the patient of your decision to disclose personal information. You should then also inform the patient in writing once you have done so.

Question 34

Who and how is confidentiality regulated in hospitals ?

Answer 34

• Hospital employees respond to the health board as their data controller, but they are also subject to information governance policies.
• If there has been a breach, Information Commissioner’s Office (ICO) can fine
• Care with audits, password protected computers…