Consent, Capacity and the Law Flashcards
why do we need consent?
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient’s consent commits an assault
Anything to a patient without agreement can be classified as assault
define consent
The voluntary and continuing permission Of an appropriately informed person who has the capacity to consent To the intervention in question Based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment
Including the likelihood of its success and any alternatives to it Acquiescence under any unfair or undue pressure Or where the person does not know what the interventions entails Is NOT consent
is consent a once off agreement?
no
it is a continuing process
list the 9 standards of the GDC
- Put patients’ interests first
- Communication effectively with patients
- Obtain valid consent
- Maintain and protect patients’ information
- Have a clear and effective complaints procedure
- Work with colleagues in a way that is in patients’ best interests
- Maintain, develop and work within your professional knowledge and skills
- Raise concerns if patients are at risk
- Make sure your personal behaviour maintains patients’ confidence in you and the dental profession
What does standard 3 of the GDC standards say about consent
- 3.1: obtain valid consent before starting treatment, explaining all the relevant options and the possible costs
- 3.2: make sure that patients (or their representatives) understand the decisions they are being asked to make
- 3.3: make sure that the patient’s consent remains valid at each stage of investigation or treatment
what are the conditions needed for consent
consent must be both valid and legal
what makes consent valid
remember it is like a bus / train ticket
- Specific to the proposed dental treatment only
- Remains current (patient still agrees)
- Was obtained recently enough
how long does consent remain valid?
• Consent should be perceived as a continuing process rather than an irrevocable, one-off decision
• Where there has been a significant interval between the patient agreeing to a treatment option and its start, consent should be renewed
• In the intervening period, the patient may have changed his or her mind or there may have been clinical developments
○ Need to check patient is still ok with their decision
It is therefore important that the patient is given continuing opportunities to ask further questions and to review the decision
name the 3 principles of legal consent
- Ability
- The patient has the ability to make an informed decision
- Capacity - Informed
- The patient has enough information to make a decision
- Properly informed - Voluntary
The patient has made the decision
what is needed to for consent to be legal / valid / accepted
- Valid and legal
- With capacity
- Informed
- Voluntary
- Not coerced
- Not manipulated
what is needed for capacity
- To act (ie to decide)
- To make a reasoned decision
- To communicate a decision
- To understand a decision
- To retain the memory of a decision
who has the ability to consent
- Any patient with capacity has the ability to give or to withhold consent
- There is a presumption of capacity in all patients from age 16 unless they are assess otherwise
- Parental responsibility ends at age 16 (in Scotland))
- No other person may lawfully give consent on behalf of a patient who has capacity
can patients under 16 have capacity
Patients under 16 with sufficient maturity and intelligence to understand the nature and implications of the proposed treatment are deemed to have capacity
who has parental responsibility
- Mum has automatic parental responsibility
- Dad must be married to mum OR be named on the birth certificate after
§ 4th May 2006 (Scotland)
[Ie if the child was born on the 3rd May 2006 the father does not have automatic parental responsibility unless married to the mother - needs to go through a legal process to get parental responsibilities]
when is parental responsibility lost
lost when giving children up for adoption
kept after divorce
does the dentist need consent from both parents
no legal obligation to the dentist to seek consent of more than one person with parental responsibility, even when they are in disagreement
can someone who is not a parent give consent for a child
Although parental responsibility can be handed over to another person, it is possible for someone looking after the child to act on behalf of the person with parental responsibility when given explicit permission to do so and this authority can be made in spoken or written form
A person who otherwise has the care of a child may do what is reasonable for the child’s welfare such as arranging treatment for dental trauma when a parent cannot be contacted provided the parent would not refuse
what is included in informed consent
- Sufficient information must be communicated (not given) so that the patient can make an informed decision about whether or not to accept the proposed treatment based on appropriate knowledge and understanding
- Specific questions must be answered fully and honestly
• Information given should be documented carefully
- If it is not in the notes then it didn’t happen
• Treatment should exceed the consent given
• Patients individual needs and wishes should be checked
- To do with materials risk
[guidance 3.1.3]
what are material risks
Material risks are where:
• A reasonable person, if warned of the risks, would be likely to attach significance to these
- Ie what would a reasonable person expect to be told about this particular procedure
- Not being able to go into work the next day etc
• The dentist is aware, or should reasonably be aware, that the particular patient if warned of the risks would be likely to attach significance to these
- Ie what is important to this particular patient
5 years ago this became a legal requirement
when is implied consent sufficient
minor procedures
when is explicit consent required
for major or invasive procedures
Want to have this for most of the time
what are the modes for obtaining consent
- Oral and written consent are equally lawful - the most important factor is a properly documented record showing all the pre-treatment steps have been taken
- Written consent is required for general anaesthetic or conscious sedation
- Ensure written consent is filed safely
- But remember a signature is only a signature
when is consent not required
- When an emergency arises in a clinical setting and it is not possible to find out the patient’s wishes, you can treat the patient without consent, provided the treatment is immediately necessary to save their life or to prevent a serious deterioration of their condition
- The treatment you provide must be the least restrictive of the patient’s future choices
- For as long as the patient lacks capacity, you should provide ongoing care; if the patient regains capacity while in your care, you should explain what has been done, and why, as soon as the patient is sufficiently recovered to understand
