Consent, capacity and competence Flashcards
3 phases of decision making
- gathering information
- recalling and pooling the information
- weighing things up
Adverse effects on decision making
- not being competent
- being coerced or put under pressure
- being deceived or having information concealed from you
Autonomy
The right to make one’s own decisions about important issues, and define oneself through one’s choices. Allows us to live according to our own values and beliefs, and is strongly linked to identity.
Self-determination theory
A field of psychology dealing with motivation, which links the notions of wellbeing, satisfaction and performance to the central ideas of autonomy, competence and relatedness.
GMC 7 key principles of consent
1) the right to be involved and informed in decision making
2) a focus on meaningful dialogue
3) the right to be listened to
4) finding out what matters to the patient
5) presuming capacity in adults
6) choices must benefit patients who lack capacity
7) patients whose right to consent is affected by law should be supported to be involved in decision making
The law and consent
The legal basis for consent is found within Common Law. There is a duty to provide enough information for the patient to make a balanced judgement, including providing alternatives and informing of common or serious consequences.
Sidaway vs Bethlem Royal Hospital Governors (1985)
Court ruled against a patient whose shoulder was paralysed during surgery, as the risk was so low.
Montgomery vs Lanarkshire (2015)
Court ruled in favour of a diabetic mother whose baby developed cerebral palsy after she was not informed of the risk of shoulder dystocia during childbirth.
GMC guidance on consent
You must give patients clear, accurate and up-to-date information, based on the best available evidence, about the potential benefits and risks of harm of each option, including the option to take no action.
Validity of consent
Consent is only valid if the patient is informed, competent, and makes the decision voluntarily without coercion. It can expire, and only applies to the specific decision for which it was given.
Situations where you cannot get consent
- emergency treatment of an unconscious/incapacitated patient
- urgent mental health treatment under the Mental Health Act
In these situations, you must always act in the patient’s best interests, and, if possible, according to what they would want.
The ‘therapeutic exception’
A theoretical situation in which giving the information necessary for informed consent would cause ‘significant psychological harm’ to the patient.
Capacity
The ability to make one’s own decisions. Relies on being able to:
- understand the presented information
- recall the information
- weigh up the decision
- communicate the decision
Assessing capacity
Capacity must be assessed, as you must presume that every adult patient has capacity. Also, capacity should be assessed, and you should not ignore signs that a patient lacks capacity.
Arskaya vs Ukraine (2013)
The European Court of Human Rights ruled that there had been a breach to the right to life, after a vulnerable patient clearly showing symptoms of a mental disorder was allowed to refuse treatment.
The two-stage test
Used to assess capacity:
1) Is there an impairment to or disturbance in the functioning of a person’s mind or brain?
2) Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
Features of capacity
- capacity is dynamic; it can change over time and with different decisions
- capacity is independent of whether you agree; even if a decision seems irrational
- capacity is the right to choose between or refuse offered treatments; it does not confer the right to demand treatment
Impairment of capacity
Many conditions may result in an individual lacking capacity:
- mental health conditions
- brain damage
- stroke
- learning difficulties
- temporary factors eg. confusion, shock, fatigue, pain or drugs, panic induced by fear
The Mental Capacity Act (2005)
Applies to everyone involved in the treatment or care of anyone over 16 who lacks capacity. Sets out 5 key principles:
1) presumption of capacity
2) support of individuals to make decisions
3) unwise decisions
4) best interest
5) less restrictive option
Q1) Can it wait?
If the loss of capacity is temporary, can the decision be postponed until after the patient regains capacity.
Q2) What would be best in general?
If there is one course of action which offers clearly better odds of a good clinical outcome.
Q3) What would be best for this specific person?
If you are familiar with the patients values and moral beliefs, what is important to them. Are there any risks they wouldn’t be willing to take, and what is the outcome they value the most.
Q4) Can you get any more information?
Advanced statement and advanced decisions (legally binding) can provide information about a patient’s wishes in certain specified circumstances.
Q5) Is there anyone else who has the right to decide?
Lasting powers of attorney (LPAs) can be appointed to make decisions for a person who lacks capacity.
Q6) Is there a total lack of information?
Independent mental capacity advocates (IMCAs) can be consulted if there is no information regarding a patient’s wishes.
Court of Protection
Supervises the implementation of the MCA, and can appoint deputies to make decisions for patients who lack capacity.
Competence
In UK law, refers to the ability of a child or young person (under 16) to make autonomous decisions.
Gillick vs West Norfolk and Wisbeck Area Health Authority (1986)
Refusal of a declaration to prevent the provision of contraceptive to girls under 16 without the knowledge/consent of their parents.
Gillick competence
To make decisions about their care and treatment, a young person must have a sufficient understanding and intelligence of what is involved, including its purpose, nature, likely effects and risks, chances of success and the availability of other options.
Fraser guidelines
Apply to the competence of a young person in the context of sexual health advice and treatment eg. contraception, STIs, TOP. The criteria are:
- sufficient maturity and intelligence
- cannot be persuaded to disclose to parents
- likely to begin/continue having sexual intercourse
- likely to suffer mental health issues
- the advice or treatment is is the young person’s best interests
Parental consent
If a child is not Gillick competent, their parents have the right to consent on their behalf.
Refusal of treatment
Even if a child is competent, the refusal of treatment that is in their best interests may be overruled by their parents or a court of law.
