Consent, capacity and confidentiality in adults

Question 1

What is essential for valid consent

Answer 1

Correct information on the procedures/ treatment in question

Question 2

What role do large organisations play in law

Answer 2

Large organisations have a large voice and so have the power to change the law.

Question 3

List some organisations that can influence politicians and judges

Answer 3

GMC Maintain a list of doctors
• BMA Trade Union
• MPO Protection(MDU MPS) 
• NHS  Provider of health services 
• CQC Ensure quality (power to shut hospital down)
• NICE Ensure value

Question 4

What is the main division between common law and statute law

Answer 4

– Common Law
• Based on tradition (local custom before 1066) • Heavy weight on judicial interpretation (cases)
– Statute Law
• Laws passed in Parliaments
• Effectively include executive powers by government agencies

Question 5

What is the key difference between criminal law and civil law

Answer 5

Criminal Law vs Civil Law (common law)
–Not based on events
–Based on consequences

Criminal law seeks punishment (in form of sentence), civil law seeks remedy (usually in the form of compensation)

Question 6

Describe criminal law

Answer 6

Criminal law relates to the offences that negatively affect society as a whole, rather than just one person. Criminal laws are put in place by Parliament to prevent breaches of conduct which they deem as harmful towards the whole of society.
If a person breaches criminal law, then they will face criminal prosecution by the state. Criminal proceedings are brought by the Crown Prosecution Service and will be heard in Magistrates’ Court or the Crown Court. If you are then convicted, you may receive a prison sentence or a community order.
The standard of proof for criminal law cases is “beyond a reasonable doubt” or “certain so you can be sure.” These both mean the same thing.
Examples of criminal offences include:
Murder
Manslaughter
Fraud
Assault
Sexual Offences
Burglary

Question 7

Describe civil law

Answer 7

Civil law is more concerned with cases between individual people where one person commits an offence which is harmful towards another person, their rights or their property. Civil law also settles disputes between individuals and organisations.
If you are convicted of a civil offence, you are not likely to be sent to prison, but most often will become liable for compensation.
The standard of proof for civil law cases is “the balance of probabilities.” However, certain civil offences such as disciplinary proceedings for solicitor misconduct can use the higher standard of “beyond reasonable doubt.”
Examples of civil offences include:
Personal injury
Breaches of contract
Employment tribunals
Negligence

Question 8

Summarise the differences between civil law and criminal law

Answer 8

The most noticeable difference between the two systems is what the aim of the cases seems to be. In Civil law, the aim is to put the person who has suffered harm back in the position they were in before the harm occurred – in other words, the aim is to set right an unfair situation.
On the other hand, Criminal Law has the aim of punishing the offender in a way that is designed to prevent them from carrying out the offence again. Moreover, the existence of laws preventing crime has a more general aim of creating a stable and law-abiding society.
Another difference as highlighted above is that civil cases are brought by individuals or a single organisation whereas criminal cases are brought by the government through the CPS.
Moreover, there is a difference with regard to appealing these cases if you disagree with the verdict. Both parties can appeal in a civil case whereas only the defendant can bring an appeal in a criminal case.

Question 9

Describe the usual process of events in criminal law

Answer 9

State punishes the wrongdoer 
–Police investigate
–Crown Prosecution Service
 –Trial with Jury or Magistrate
 –Sentence or Release

Question 10

Describe the key properties of civil law

Answer 10

Remedy is usually compensation
• Tort Law is a branch
• Two parties with relationship but no contract (doctor and patient)
• Aggrieved party = claimant
• Defending party = defendant
• <1% to Trial (by Judge alone)

Question 11

What is tort law

Answer 11

A tort occurs when someone commits a wrong against another person. Tort law allows individuals who have had a wrong committed against them to claim damages against the person who has committed the wrong. It encompasses a vast amount of different types of legal issues.
Tort a civil law that aims to return individuals back in the position they were in before the wrong was committed against them to ensure they do not suffer any unnecessary loss.

Question 12

Give some examples of offences in tort law

Answer 12

Duty of Care
negligence
Personal injury
Strict liability
Nuisance
Damages

Question 13

What is the causation of tort law

Answer 13

In order for the claim in tort to be made correctly, it must be shown that the loss or harm was caused as a result of the action taken by the defendant whether directly or indirectly.
The common question asked is: If it was not for the action by the defendant would the harm have occurred? If the answer is no, then causation is made. Causation becomes more complex if more than one possible cause of the harm could exist or if the connection between the harm and the action is somewhat remote.

Question 14

What is a civil wrong

Answer 14

A civil wrong is a cause of action under the law. Torts, breaches of contracts and breach of trust all constitute civil wrongs.
These wrongs cause a claimant to suffer loss or harm of some description.
It is the existence of this harm or loss, as well as other important aspects of tort such as a breach of a duty of care and causation, which creates liability against the person who committed the wrong.

Question 15

Which hospital department receives the highest number of claims

Answer 15

Surgery

Question 16

Which hospital department pays out the greater value for claims

Answer 16

Obstetrics and gynaecology (mostly obstetrics)

Question 17

Outline the court hierarchy

Answer 17

Coroner —- Coroner’s court (territorial- depends on location of the dead body)

Criminal
Crown court- court of appeal - Supreme Court (House of Lords)- more substantial as you progress

Civil
County or high court

Question 18

What are the potential legal outcomes of not obtaining consent

Answer 18

Criminal –Assault
–R v Flattery (sexually exploited anxious patient)
• Civil
–Claim for damages

Civil court normally- but may go to criminal- for harm and sexual assault etc

Question 19

Under which circumstances do you not need to obtain consent

Answer 19

• Emergency
• Implied (patient undresses when you ask to examine them)
• Waiver (patient says that you can do what you want)
• Best interests (when a patient lacks capacity)

Question 20

What is important to remember about bad decisions

Answer 20

Bad decisions are not evidence of a lack of capacity

Question 21

What are the consent presumptions for adults

Answer 21

• Adults (from age 16 onwards)
– Are assumed to have mental capacity to make a decision regarding treatment
– Unless there is contrary evidence

Question 22

What are the consent presumptions for children

Answer 22

• Children(lessthat16)
– Are assumed to NOT have mental capacity to make a decision regarding treatment
– Unless there is contrary evidence

Question 23

What is meant by valid consent

Answer 23

A competent person who understands the nature of the treatment
based on information about “material risks” without coercion.

Question 24

What are the key features of competence

Answer 24

– Understand the information
– Retain the information
– Use the information to make a decision – Communicate the decision

Question 25

What are the 5 key principles of section 1 of the mental capacity act (2005)

Answer 25

1. A presumption of capacity
2. The right for individuals to be supported to make their own decisions
   That individuals must retain the right to make what might be seen as eccentric or unwise decisions
3. Best interests
4. Least restrictive intervention

Question 26

Describe what is meant by a presumption of capacity

Answer 26

• every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise

Question 27

Describe what is meant by the right for individuals to be supported to make their own decisions

Answer 27

people must be given all appropriate help before anyone concludes that they cannot make their own decisions;

Question 28

Describe what is meant by best interests

Answer 28

anything done for or on behalf of people without capacity must be in their best interests

Question 29

Describe what is meant by the least restrictive interventions

Answer 29

anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms

Question 30

Describe the assessment of capacity in section 3 of the mental capacity act (2005)

Answer 30

A single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time.
It is a “decision-specific” test.
No one can be labelled ‘incapable’ as a result of a particular medical condition or diagnosis.
i.e just because a patient doesn’t have the capacity to consent for complex heart surgery doesn’t mean that they don’t have capacity to consent for a simple procedure for a broken finger

Question 31

Describe the test for assessing capacity

Answer 31

A person is unable to make a decision for himself if he is unable –
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of
the process of making the decision,
(d) to communicate his decision (whether by talking, using sign language or any other means).

Question 32

Describe the evolution in attitudes towards material risk and how much we need to disclose as doctors

Answer 32

1. Bolam (if 1 other doctor agrees with what you did- you’re ok)
2. Sidaway (patient not told of risk of spinal cord damage- but procedure was deemed to be completed competently- judge applied Bolam principle)
3. Bolitho- respiratory infection- patient fluctuated- doctor busy and did not see patient- patient deteriorated- cardiac arrest and brain damage- claim that doctor should have been there to intubate and thus prevent cardiac arrest- doctor said that even if he was there- he wouldn’t have intubated- no punishment
4. Montgomery- never disclosed full risk (10% risk of shoulder dystocia)- patient would have requested caesarian if she had known the risk - doctor should not just disclose what they think should be known- patient should be able to drive what is disclosed- this rejected the Bolam principle

Question 33

When is patient permission required

Answer 33

The law requires permission from a patient before treatment can occur.

This permission is called Consent.
It is required for any form of medical management – from taking a history, conducting an examination through to interventional treatments such as operations.
When permission is not granted by a patient, the patient has “refused to consent”.

Question 34

Who needs to obtain consent

Answer 34

You must have consent from a patient, even as a medical student. All Health Care Practitioners must have permission from patients before they start.

This includes getting consent for:

Taking a history.
Conducting a physical examination.
Performing tests, such as phlebotomy.

Question 35

What can happen if the doctor acts without consent

Answer 35

Acting without consent can result in court action. If a doctor acts without the consent of a patient then he may have committed the following offences:-

Criminal offence.
Assault
Battery
Common assault (combination of both assault and battery)

Civil action from patient.
Claim for damages.

Question 36

What is important to remember about emergence as an exception to consent

Answer 36

Has to be a genuine emergency

Can’t just be the patient’s perception of emergency, or that the patient is in A&E.

Question 37

B is a 51 year old machinist in a factory. In an unusual accident she has suffered severe crush injuries to both hands. The orthopaedic surgeon explains to B and her husband that she will require amputation of both hands with a view to further surgery to enable prostheses to be fitted. B asks what the operation will involve and whether some sort of artificial hand would be possible at a later stage. After a lengthy discussion with the surgeon and her husband, B agrees to the surgery. However she is unable to sign the consent form. Can the surgeon proceed on the basis of valid consent?

Answer 37

Yes, provided her decision is informed and voluntary.

Correct. A signature is evidence but not proof of consent. Legally valid consent is the process of obtaining non-coerced permission from an informed, competent individual. Thus oral or written express consent is legally valid provided it meets these criteria. In this situation, where there is a major procedure being proposed, it would be wise (but not legally required) to have the oral consent process witnessed and signed for by a second individual as further evidence that valid consent was obtained.

Question 38

What is meant by explaining things under broad terms in valid consent

Answer 38

If a doctor tells every possible side effect of a proposed treatment, then whilst the patient would be fully informed there is a danger that they will be overburdened by too much information and scared off from a potentially useful and safe treatment.

If a doctor doesn’t mention any of the known common or serious risks of a procedure then he would have not told the patient enough.

The current legal position is that a doctor would be expected to provide the information that their specific patient would reasonably want to know. This underlies the importance of shared decision making, so that the doctor understands the impact of a proposed procedure or treatment on their patient.

Question 39

B is 39 year old shop assistant. She has appendicitis. The surgeon advises her to have an operation. She is very nervous about the operation but eventually gives her consent to an appendectomy. At the operation the surgeon finds a severely inflamed appendix and removes it without complications. However, he also notices a suspicious tumour of the right ovary. Although the surgeon does not think that this tumour was the cause of her presenting symptoms, he thinks it is clearly in her best interests to remove the affected ovary. Can the surgeon remove the ovary on the basis of valid consent?

Answer 39

No, B has not given valid consent.

This woman gave valid consent for an appendectomy. The ovarian tumour is an incidental finding, unrelated to her presenting symptoms and therefore she has not given consent for removal of the ovary (her consent was not informed regarding an ovariectomy). She is presumed competent and this is not an emergency situation (she will not die on the operating table or be permanently and seriously harmed if the suspicious ovary is not removed at the time of the appendectomy) so any consideration of best interest is irrelevant.

Question 40

Describe how we can ensure valid consent is obtained without coercion

Answer 40

The agreement of the patient must be from the patient alone.

Sometimes a patient may agree to a treatment only under the pressure of a relative or friend. It is fine to discuss one’s concerns with friends and relatives, but when their advice turns into coercion then the patient must be removed from the coercive environment and the discussion repeated.

Question 41

B is a 56 year old woman with hypertension and schizophrenia. She is admitted into hospital with a life-threatening aortic aneurysm. The vascular surgeon has seen B and explained to her that she needs an operation. However, she refuses to consent to the operation. She says that she would rather die than have a graft. Her psychiatrist has reviewed her and says that she is mentally competent. Her husband tries unsuccessfully to persuade her to have surgery. Can the surgeon proceed?

Answer 41

No, B has not given valid consent

Correct. A competent individual has an absolute right to refuse treatment even if that refusal may lead to severe and permanent harm or death. The refusal may be based on a good reason, an unwise reason or no reason at all. Provided the refusal is competent, informed and voluntary it MUST be respected. Nobody, not even the Court, can give consent on behalf of a competent adult. A person must not be judged to lack competence solely because they have made an unwise or unreasonable decision.

Question 42

Describe refusal

Answer 42

So if a patient who fills the criteria for competence when given information in broad terms, refuses and they are not under coercion, then they have refused the treatment. In this situation, even if the proposed treatment seems to be in the patient’s best interests or is potentially life saving, you cannot proceed without their consent.

Treating them against their will would be an offence and so therefore their refusal of treatment must be respected.

If breached, you are contravening GMC standards

Question 43

J is an 84 year old man brought into A+E by his wife, L, with acute confusion and abdominal pain. Until 2 days ago he was fit and well and, according to his wife, could complete the Times crossword in 20 minutes. Now, he does not know where he is or what day it is. The on-call surgeon diagnoses acute appendicitis requiring emergency surgery and explains this to J and his wife. J thinks that he is in a German prisoner of war camp and tells the surgeon that he has rights under the Geneva convention. J says that he ‘is not a traitor and will not agree to anything’. What should the surgeon do?

Answer 43

proceed with treatment/ surgery provided it’s in J’s best interests

Correct. From the information provided, J lacks capacity. Therefore surgery is only lawful if it is in J’s best interests. Seeking a second opinion in this situation is good practice as it makes it more likely that you correctly ascertain best interests but does not of itself does provide legal grounds for surgery.

Question 44

Describe acting in the patient’s best interests

Answer 44

If however, a patient fails to meet one of the criteria for competence then it is not possible to obtain consent from the patient.
In this situation the health care practitioner is obliged to act in the patient’s best interests.
No one can consent on behalf of an adult who lacks mental capacity unless they have been granted specific legal authority by the Court of Protection to do so.

Question 45

Summarise consent, capacity and refusal

Answer 45

Valid consent must be competent, informed and voluntary.
No one can consent on behalf of a competent adult.
A competent adult has an absolute right to refuse medical treatment.