Consent, capacity and refusal in adults Flashcards
Describe the concept of consent
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’.
o Taking a history;
o Conducting a physical examination;
o Performing tests, such as phlebotomy.
Obtain Consent
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:
o Taking a history;
o Conducting a physical examination;
o Performing tests, such as phlebotomy.
Note: Refusal to be seen by a Medical Student
Some patients will refuse to have a medical student talk to them or examine them – this is the right of a patient and however upset or annoyed that the medical student feels, the patient care must not be adversely affected.
Refusal Scenario
David is a very gifted and motivated medical student, who even in the fifth year knows that he wants to be the next Professor of Gynaecology. On his O&G attachment he is keen to see (and to be seen to see) many new patients in the multigravida clinic. He calls Mrs Satsuma and explains that he will see her before the consultant. Mrs Satsuma refuses, and says loudly that she ‘doesn’t want to be a guinea pig’. When no one is looking, David puts her notes to the bottom of the pile.
You are the medical student with David in clinic that day. You see him put Mrs Satsuma’s notes to the bottom of the pile. What would you do?
Feedback – We can sympathise with David, keen and motivated, and then feeling humiliated that the patient won’t see him. However, he should overcome these feelings and not adversely affect the care that she receives. He has contravened one of the GMC principles as laid out in Good Medical Practice.
Exxplain the significance of acting without consent
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:
o Criminal offence: assault & battery.
o Civil action from the patient: claim for damages → As a result of any action which occurs without
permission
GIve the necessary details of the cases where there are exceptions
4 Situation where there is Exceptions to consent include:
1) Emergency: A medical emergency whereby obtaining consent would lead to damage to a patient and there is genuinely no time to ask the patients permission, for example if a patient arrives at A&E with a severed artery which must be immediately pressed on to stop blood loss.
2) Implied: Some patients imply permissions through their actions, such as lifting up a top when asked permission to examine. Usually we should rely on express consent – either oral or written permission, particularly for invasive treatment.
3) Waiver: Some patients waive consent. They don’t want to know the details and just want the treatment to occur. Be careful who is attempted the waiver – fine if it’s the patient. More often it’s the relative who doesn’t want the patient to know the details of their condition.
Without good reason, the doctor must not put himself in the position of agreeing to such a waiver. Duty of care lies on the patient, it is difficult treat when patient doesn’t know what happened to them
4) Best interests: In certain situations it is not possible to obtain the permission of the patient. They may be unconscious or have severe dementia and this not able to take part in a discussion about their treatment. In such situations, where the patient lacks the capacity to give consent (i.e. is not legally competent to give consent), the doctor must act in what he believes to be the patient’s best interests.
What is the definition of valid consent
A competent person who understands the nature of the treatment based on information in broad terms without coercion who then gives their permission.
What is a competent person?
In order to be competent, the patient must:
Understand the information,
Retain the information,
Use the information to make a decision,
Communicate the decision.
Describe the relvance of the decicion to competence
Competence is decision-specific:
- The information that the patient must understand is only that information which is relevant to the discussion.
- Therefore a patient may have the ability to understand the consequences of treating pneumonia but not to make a will
List the consent presumptions
(i) Adults: from age 16 onwards ● Assumed to have mental capacity to make a decision regarding treatment. ● Unless there is contrary evidence (e.g. advanced dementia). (ii) Children: under 16 ● Assumed NOT to have mental capacity to make a decision regarding treatment. ● Unless there is contrary evidence (i.e. Gillick competence). The legal situation regarding individuals aged under 18 but 16 or older is slightly more complicated, particularly regarding refusal of treatment (see Children and the Law).
Case study 1: B is a 51yo machinist in a factory. In an unusual accident, she has suffered severe crush injuries to both hands. The surgeon explain 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?
- YES, provided her decision is informed and voluntary
- A signature is evidence but not proof of consent. Legally, valid consent is the process of obtaining noncoereced 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 not be wise (but not legally required) to have oral consent process witness and signed for by a second individual as further evidence that valid consent was obtained.
Give information on the amount of informatino a doctor must give about a treatment.
Broad Terms • If a doctor tells every possible side effect of a proposed treatment, then whist 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 side effects of a procedure then he would not have told the patient enough. • A balance needs to be struck – and the courts have held that doctors must mention what their colleagues would mention for a similar procedure. Usually this involves mentioning both the common and the serious but rare side effects. If a patient asks a specific question then this must be answered truthfully.
Case study 2: B is 39 year old shop assistant. She has appendicitis. The surgeon advise her to have an operation. She is very nervous about the operation, but eventually gives her consent to an appendectomy. Surgery went fine, but doctor found ovarian tumour, can he removes it on basis of valid consent?
No, B has not given valid consent. o This women gave consent for appendectomy. The ovarian tumour is an incidental finding, unrelated to her PS and therefore she hasn’t given consent for removal of the ovary (her consent was not informed regarding an ovariectomy) o 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 it is not removed → so best interst isn’t relevant
Describe what to do in the case of coercion of a patient
• 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. o 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.
Describe what you should do when an adult patient refuses treatment
• If a patient who fills the criteria for competence when given information in broad terms, refuse 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, 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 healthcare 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
B is a 56 yo woman with HTN and schizophrenia. She is admitted to hospital with life-threatening aortic aneurysm. Surgeon has seen B said she needs operation. But she refuses to consent to the operation. She said 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?
No, B has not given valid consent o A competent individual has an absolute right to refuse treatment even if that refusal may lead to severe and permanent harm or death o The refusal may be based on a good reason, an unwise reason or no reason at all o Provided the refusal is competent, informed and voluntary is MUST be respected. o Nobody, not event the COURT, can give consent on behalf of a competent adult. o A person must not be judge to lack competence because they have made an unwise or unreasonable decision
J is an 84yo man brough 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 doesn’t 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 the rights under Geneva convention. J says that he ‘is not a traitor and will not agree to anything’. What should the surgeon do?
Proceed with the surgery provided it is J’s best interest o From the information provided, J lacks capacity o Therefore surgery is only lawful if it is in J’s best interest. o 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 provided legal grounds for surgery
