Consent and confidentiality

Question 1

Consent- autonomy and paternalism

Answer 1

• Autonomy- self determination
  
  • The ability to evaluate and deliberate
  • The capacity to make decisions
  • The freedom to act
• Paternalism- over-riding someones autonomy in their interest
  
  • Who judges interest
  • When is their sufficient reason for over-ride

Question 2

Consent

Answer 2

• Consent is the voluntary and continuing permission of a patient to be given a particular treatment
• Based on a sufficient kknowledge of the purpose, nature likely effects and risks of that treatments
• Incluidnigthe likelihood of sucess and any alternatives to it
• Permission given under any unfair or undue pressure is not consent
• Consent of children under 16 valid if child
• Children 16-17 given same rights to consent as an adult under the family law reform act 1969 (note difference with refusal fro treatment)

Question 3

Consent legal basis

Answer 3

• Trespass to the person
  
  • Assault- a person threatens or attempts to physically injure another person and the injured party has reasonable fear that the treat will be carried out
  • Battery- goes beyond a threat and the action is carried out (without consent)
• Can be (extreme cases) a criminal offence, or a civil case under the law of tort. Tort of negligence may be applied
• Battery could occcur when a health professional touches a patient without consent
• Legally consent is required for any action where apatient is touched

Question 4

3 Elements of consent

Answer 4

1. Sufficient information is given- so informed
2. The consent is voluntary
3. The patient has the capacity to understand that information (they are competent in law)

Question 5

Explicit and implicit consent

Answer 5

• Written consent- often standard forms. Legally required for a few procedures
• Verbal consent- explicit within limits. Must make clear verbally what you intend to do “I’am going to take your BP”
• Just going to a doctor or hospital Doesn’t imply consent
• Implicit consent- No written forms, no explicit words
  
  • Based upon actions e.g. nod of the head, preparatory action (rolling up a sleeve for BP measurements)

Question 6

What information is needed

Answer 6

• Patients need sufficient information before they can decide on whether to give their consent
• Patient standar- disclose what an average “resonable” patient with that condition would want to know
• Professional standard- set by health professional fallowing accepted standards
• If a patient asks a doctor about a risk, then the doctor is required to give an honest answer

Question 7

Voluntary consent

Answer 7

• Consent must be given voluntarily
• Therefore not under any form of duress or undue influence from
  
  • HCP, family or friends
• Consent can be withdrawn at any time
• Court may decide whether there is undue influence

Question 8

Overriding cunsent

Answer 8

• 20-year old women injured in car accident when 34-weeks
  pregnant. Rushed to hospital for emergency caesarean.
• Baby still-born. Then patient develops abscess on lungs

but refuses treatment on religious grounds supported by

mother, devout Jehovah’s witness. Hospital went to court

• Judgment that refusal was not “free”.Does the patient

really mean what they say or is he saying it for a quiet life

or to satisfy someone else or because the advice and

persuasion to which he has been subjected is such that

he can no longer think or decide for himself

Question 9

Capacity- competency

Answer 9

• Starting point is that a person has capacity
• Can the patient understand and retain the information provided
• Can the patient weight that evidence
• Can the patient come to a conclusion based on the evidence
• Can the patient communicate a decision
• Special case for children

Question 10

Mental capacity act 2005

Dont confuse mental health act and capacity act

Answer 10

• A person must be assumed to have capacity unless it is established that he lacks capacity
• A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision
• An act done, or decision made under the act for or on behalf of a person who lacks capacity must be done, or made in his best interest

Question 11

New bodies and powers under the act

Answer 11

• Attorneys appointed under lasting powers of attorney
• Court of protection- with power to appoint deputies
• Independent mental capacity advocates

Question 12

Limits of power

Answer 12

• No powers over decisions regarding family relationship
  
  • Marriage, divorce or civil partnership
  • Adoption or exercise of parental responsibility
  • Sexual relations (but not vulnerable persons)
• Mental health act 1983- no power over a person detained under this act
• Voting rights
• Unlawful killing, assisted suicide

Question 13

Life sustaining treatment

Answer 13

• What falls under definition up to doctor or healthcare practitioner
• Anyone deciding on such treatment must have no motive for individual’s death
• Must consider patient’s best interests and any evidence of patient’s view
• Withholding or removal of life sustaining treatment must consider patient’s best interest

Question 14

The rights of children

Answer 14

• Declaration of Geneva 1924- mankind owes to the child the best it has to give
• Children recognised as persons who are entitled to the same human rights as an adult
  
  • Legally binding
  • Wide rangin- social, economic, political, civil
  • Controversial- from liberationist to paternalist

Question 15

Consent by minors

Answer 15

• Young person aged 16-17 have the competence to give consent for themselves but non-consent may be over-ridden
  
  • England and Wales the family law reform act 1969& children’s act 1989
• Children U16 who understand fully what is involved in the proposed procedure can also give consent if judged competent. Interacts with confidentiality
• In other cases, someone with parental responsibility must give consent on the child’s behalf

Question 16

Gillick competence

Answer 16

• Gillick v West Norfolk and Wisbech 1985
• Wanted assurance of AHA that daughters would not be given contraception or abortion advice before they reached 16 years
• The parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision

Question 17

Mental capacity act and minors

Answer 17

• Most of the act applies to those of ages 16-17 however only those of 18 may
  
  • Make a lasting power of attorney
  • Make an advance decision to refuse treatment
  • May have a statutory will made by the court of protection
• U16 the act generally does not apply except that the court of protection may make an order (e.g. investment of award) or appoint a deputy to manage the child’s property and affairs

Question 18

Who has parental authority

Answer 18

• Mother
• Father if married to mother at time of insemination or both
• Father not married- can gain by marriage by court order or by maternal agreement
• Step parent- no automatic rights
• Adoption- original parents sease to have authority
• Guardian
• Local authority- via court order

Question 19

Confidentiality- Legal basis

Answer 19

• Basis is common law
• Recognised when the information is of a private or intamte nature
  
  • The information must have been given in a situation where there is an obligation to not disclose (a fiduciary relationship)
  • There is unauthorised use of the information
  • Protecting confidentiality is either in the public interest or the person would suffer if the information was revealed i.e. harm

Question 20

Other duties of confidentiality

Answer 20

• Duty of negligence- i.e. duty of care
• Professional obligations e.g. HCPC code
• Contracts of employment- usually in relation to information gained as a result of employment
• Confidentiality: NHS code of practice
• With regard to data- data protection act 1998, Human rights act 1998

Question 21

Legal requirements to override

Answer 21

• Public health- notifiable diseases
• Abortion- clinician must notify CMO
• Births and deaths
• Road traffic act 1988- all citizens
• Human fertilization and embryology act 1990
• The NHS (veneral diseases) regulation 1974- for tracking only not to other 3rd party
• Terrorism Act 2000

Question 22

Confidentiality: NHS code of practice

Answer 22

• Information that identifies the patient by name should not be divulged without consent
• Patients should be informed when information is stoed, the reasons and its use
• Great care on any disclosure if not in the business of health care
• Patient has a right to limit information passing within a term of professionals- but they should be informed if this limits the effectiveness of their care

Question 23

Childrens rights

Answer 23

• Aged 16-17 confidentiality owed to the child provided competent
• Less than 16 and Gillick competent as discussed above
• But children’s act 1989 places obligation to act in best interests of the child
  
  • If disclosure to parents meets the test of best interest, then probably lawful
• Consent and right to confidentiality not the same. If the requested treatment is refused (e.g. contraception) the right to confidentiality should be respected. Break only if clearly in child’s best interest

Question 24

Data protection act 1998

Answer 24

• Confers right of access to personal information to the subject of that information (data subjects)
• Regulates processing of personal information
  
  • Processing= anything done to with information from creation to destruction
  • But only applies to live subjects

Question 25

DPA- key requirements

Answer 25

• Processed fairly and lawfully
• Held for specific lawful purpose and usedDisclosed for no other purpose
• Adequate/relavent/not excessive
• Accurate, up-to date
• Kept no longer than necessary (should be limited)
• Processed in accordance with rights under act
• Secure against unauthorised access and loss
• Subject to restriction in transfer outside UK

Question 26

DPA- Rights conferred

Answer 26

• Data definition wider than original 1984 act
  
  • Includes most manual systems as well as computer
• Enhanced employee rights to receive details of data about them e.g. reference
• Restricts holding of sensitive personal data
• Subjects right to access data: entitled on (payment fee)
  
  • Description of the data held
  • Purpose
  • Potential recipients
  • Source
  • To have data corrected

Question 27

Sensitive personal data

Answer 27

• Relating to race, ethnic origin, political opinion, religious/Philosophical belief, trade union membership, physical and mental health, sex life
• Processing such data is only allowed with subjects exlicity permission
  
  • But Schedule 3 of the act allows HCP who have an existing duty of confidentiality to keep medical data without explicit permission

Question 28

Data protection Act 2018

Answer 28

• Repeals the date protection act 1998
  
  • Acheived royal assent on 23 may 2018
• It applies the EU’s GDPR standards
  
  • The regulation will fundamentally reshape the way in which data is handled across every sector, from healthcare to banking and beyound
• General data protection regulation
  
  • Regulation on the protection of natural persons with regard to the processing of personal data
  • Regulation in EU law on data

Question 29

Access to health records Act 1990

Answer 29

• Largely replaced by the DPA 1998
• Applies to non-computerised data- covers records to kept by HCP and applies to data for decreased patients
• Patients right of access to their health records
  
  • Access in 21 days unless >40 days old then have another 14 days but written application for access
  • Technical terms must be explained
  • erroneous information must be corrected
• Child <16 rights protected- no automatic parenteral access
• Access may be denied if though to cause mental/physical ham to patients

Question 30

Caldicott report 1997 1

Answer 30

• Commissioned by CMO
• Concern about way patient information usaid in NHS England and wals
• Need to ensure confidentiality maintained
• Arising from increased IT and ability to disseminate data widely and rapidly
• Concerns have arisen again over the NHS IT highway

Question 31

Caldicott report 1997- 2

Answer 31

• Conflict between promptEffective patient care and expectation of patient confidentiality
• Use of explicit and transparent policies of good practice
• Apply to individual patient care and medical research
• 86 flows of patient identifiable data were mapped
• 16 recommendations

Question 32

Caldicott report- example recommendations

Answer 32

• All data flow should be tested against principles of good practice
• Reinforce awareness of confidentiality and information security requirements
• Nominate senior person (HCP) as safeguard
• Clear guidance for those approving use of patient identifiable data

Question 33

Freedom of information Act 2000

Answer 33

• Purpose- Create new culture of openness (public sector) by providing right of access to info held by public bodies (in cluding universities
• FOI replaces the open government code of practice, which had been in operation since 1994