Consent, capacity, confidentiality and children

Question 1

What is consent?

Answer 1

The law requires permission from a patient before treatment can occur -> this is consent

Question 2

What is consent required for?

Answer 2

It is required for any form of medical management – from taking a history, conducting an examination through to interventional treatments such as operations.

Question 3

What do patients have a right to do if they do not consent?

Answer 3

They have the right to refuse consent to medical treatment -> this should not adversely affect patient care

Question 4

What happens if a doctor acts without consent of a patient?

Answer 4

they may have committed the following offences:

Criminal offence -> assault, battery, common assault (combo of both assault and battery)
Civil action from patient -> claim for damages

Question 5

What happens if a doctor acts without consent of a patient?

Answer 5

they may have committed the following offences:

Criminal offence -> assault, battery, common assault (combo of both assault and battery)
Civil action from patient -> claim for damages

Question 6

Exceptions to asking for consent?

Answer 6

• Genuine medical emergency whereby obtaining consent would lead to damage to a patient and there is no time to ask
• Implied -> implied via actions e.g. lifting up top when asking permission to examine
• Waiver -> patients waive consent as they don’t want to know the details and just want treatment
  -Acting in patient’s best interest -> patient may not be able to partake in the discussion e.g. unconscious or lack capacity to consent

Question 7

Why should you be careful of waiving of consent?

Answer 7

Not okay for relative of patient to attempt waiving of consent -> okay for patient
Doctors must not put themselves in position of agreeing to such a waiver without good reason

Question 8

What is valid consent?

Answer 8

A competent person that understands the nature of the treatment based on information in ‘broad terms’ without coercion who then gives permission

Question 9

What is a competent person?

Answer 9

Understand the information -> the info relevant to the discussion
Retain the information.
Use the information to make a decision.
Communicate the decision.

Question 10

Consent presumptions for adults?

Answer 10

Adults (from age 16 onwards)

• Are assumed to have mental capacity to make a decision regarding treatment.
• Unless there is contrary evidence.

Question 11

Consent assumptions for children?

Answer 11

Children (less than 16)

• Are assumed to NOT have mental capacity to make a decision regarding treatment.
• Unless there is contrary evidence.

Question 12

How much information is a doctor expected to provide for valid consent?

Answer 12

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 13

What might make consent from a patient invalid?

Answer 13

If the consent was provided within a coercive environment

Question 14

If refusal of consent led to death, would a competent individual have the right to refuse?

Answer 14

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.

Question 15

When is the refusal of consent legitimate?

Answer 15

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

Question 16

What would you do if an adult lacked capacity but needed life saving surgery?

Answer 16

Proceed with surgery, provided it is in patient’s best interests -> asking relatives might help ascertain best interests but is not legal grounds for surgery

Question 17

Who can consent on behalf of an adult who lacks capacity?

Answer 17

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 18

Exceptions to keeping confidentiality?

Answer 18

• implied consent
• with consent
• required by law
• in wider public interest

Question 19

Describe implied consent with regard to exception to breach of confidentiality?

Answer 19

IMPLIED CONSENT BY PRESENCE
Rather than express consent (patient says “yes” orally or in writing) we imply that the patient consents to us telling the wider team about their condition, through them being in hospital and realising that other people will be looking after them too.

Question 20

Describe the conditions for breaking confidentiality with regard to express consent?

Answer 20

Must be express -> from patient and not others involved in their care
How much information to be divulged?
To whom?
Most relatives don’t have rights

Question 21

When do relatives have a right to know with regard to patient confidentiality?

Answer 21

Unless a parent of a child who is not Gillick competent, relatives do not have a right to know in most cases.

In situations of a patient who lacks competence to make a decision about health care, next of kin now have a right to be consulted where practical to do so.

Question 22

Describe the conditions for breaching confidentiality with regard to it being required by statute?

Answer 22

Examples requiring a breach include.
- Notification of Death.
- Notification of Termination.
- Treatment of Drug addict with specified drugs.
- Notifiable Infectious Disease.
In these cases permission of the patient is not required, and the relevant authority must be informed.

Question 23

Describe the conditions required for breaching confidentiality with regard to assisting the police?

Answer 23

Exceptions:

• Under a warrant from a circuit judge.
• To aid police request in identifying drivers suspected of offences.
• To aid police in all matters with suspected terrorist patient.

the Department of health states that ‘theft, fraud and damage to property’ would not usually provide reasonable justification for breaching confidentiality.

Question 24

Describe the conditions required for breaching confidentiality with regard to assisting the police?

Answer 24

Exceptions:

• Under a warrant from a circuit judge.
• To aid police request in identifying drivers suspected of offences.
• To aid police in all matters with suspected terrorist patient.

the Department of health states that ‘theft, fraud and damage to property’ would not usually provide reasonable justification for breaching confidentiality.

Question 25

Describe the conditions required for breaching confidentiality with regard to public interest?

Answer 25

• The balance between duty to patient and duty to society.
• Maybe challenged.
• Must justify action (or inaction).

Question 26

When should you inform the DVLA of a patient’s inability to drive if they wish to not disclose it?

Answer 26

if you believe that your patient’s continued driving poses a serious risk of significant harm to others & you have been unable to persuade the individual to disclose, then you have a professional responsibility to inform the DVLA and tell the patient what you are doing.

Question 27

When can the doctor breach confidentiality with regard to children?

Answer 27

If the child is <16 and not Gillick competent the doctor can breach confidentiality if it is in the child’s best interests (or with parental consent).

Question 28

What happens with regard to consent if the child is Gilick competent?

Answer 28

If the child is Gillick competent then the child can give or refuse consent to disclosure. But confidentiality can still be lawfully breached if it is still in the child’s best interests.

Question 29

When are children presumed competent?

Answer 29

If the child is over 16 then they are presumed competent, and disclosure should only be made with their consent. But confidentiality can still be lawfully breached if it is in the child’s best interests up to the age of 18.

Question 30

What is the Children Act 1989?

Answer 30

• Act clearly states that everything that is done by a local authority, a court or any person for that matter, must have the welfare of the child as paramount.
  – The rights of the parents are secondary to the welfare of the child even if this creates an unjust situation for either or both of the parents.

Question 31

When is the Children Act 1989 relevant to doctors and other HCPs?

Answer 31

obtaining consent
refusal of treatment
disclosure of information / breach of patient confidentiality

Question 32

What are the 4 principles of the Children Act 1989?

Answer 32

1) The child’s welfare is paramount
2) Presumption of no order
3) The welfare principle in practice
4) Parental responsibility

Question 33

Describe what the Principles of the Children Act 2 states (presumption of no order)?

Answer 33

The Act assumes that in most cases the courts will not force an order upon the parents or upon the Local Authority.
Court orders will therefore only be made where this will benefit the child.
There is a requirement for local authorities to work in partnership with parents for the welfare of the child.

Question 34

Describe what the Principles of the Children Act 3 states (the welfare principle)? (6)

Answer 34

1) Wherever possible children should be brought up and cared for within their own families.
2) Children should be safe and protected by effective intervention if they are in danger.
3) Agencies should work in partnership with parents insofar as it does not prejudice the welfare of the child.
4) Children should be kept informed about what happens to them and their wishes and feelings taken into account (considered in the light of their age and understanding). They should have the opportunity to participate in decisions made about their future.
5) Parents continue to have parental responsibility in relation to their children, even if their children are no longer living with them. They should be kept informed about their children and participate in decisions made about their future.
6) Parents with children in need should be helped to bring up their children themselves

Question 35

Describe what the Principles of the Children Act 3 states (the welfare principle) with regard to children?

Answer 35

• Wherever possible children should be brought up and cared for within their own families.
• Children should be safe and protected by effective intervention if they are in danger.
• Children should be kept informed about what happens to them and their wishes and feelings taken into account (considered in the light of their age and understanding). They should have the opportunity to participate in decisions made about their future

Question 36

Describe what the Principles of the Children Act 4 states (parental responsibility)?

Answer 36

Having Parental Responsibility gives either or both parents the right to decide for their children decisions that most take for granted.

Question 37

What does the Children Act outline about a court’s view with regard to parental responsibility?

Answer 37

The Children Act effectively outlined how the courts would view matters when relations broke down between the parents, or where the Local Authority felt that the parents were not capable of looking after their children.

Question 38

people that can have parental responsbility?

Answer 38

– both parents (if married at birth or both on birth certificate)
– mother only (if unmarried and no agreement with father)
– legally appointed guardian
– local Authority with a care or protection order

Question 39

What does the Children’s Act state with regard to acting on the abuse of children?

Answer 39

The Act provided details of the types of situations whereby the Local authority is obligated to intervene.
– physical
– sexual
– neglect
– emotional
Each local authority is required to keep a list of those who are considered “at risk”.

Question 40

Is religious belief sufficient reason to refuse life-saving treatment for a child?

Answer 40

The Courts in England and Wales have made it clear that they will not allow parents to martyr their children on the basis of the parents’ religious or cultural beliefs. Overriding parental refusal will only be justified when it is in the child’s best interests.

Question 41

What act states that the age of consent to medical treatment is 16?

Answer 41

The Family Law (Reform) Act 1969 states that the age of consent to medical treatment is 16.

Question 42

Who can agree to medical treatment for children under 16?

Answer 42

For patients below 16 only those who have parental responsibility can agree to medical treatment for the child.

Question 43

What happens in terms of decisions if several people have parental responsibility?

Answer 43

• If there are several people with parental responsibility then it is acceptable to gain permission from only one of them.
• For major decisions where there is parental disagreement it is advisable to seek court approval.

Question 44

What happens in an emergency if there is no one with parental responsibility?

Answer 44

• In an emergency when no one with parental responsibility is available then medical treatment or surgery can be given without consent under the legal principle of necessity.
• Treatment is legally necessary if it is in the patient’s best interests and cannot wait until consent can be obtained.

Question 45

What does the Gillick Exception allow?

Answer 45

This case allows, under certain conditions, a doctor to obtain permission for treatment from the child, without consulting those with parental responsibility -> provided certain criteria are met

Question 46

Criteria for Gillick Exception?

Answer 46

1) Ask the child if you can tell one or both of their parents
2) Assess how mature the child is, in terms of the treatment -> do they understand what is involved and the complications
3) They are likely to suffer physical or mental harm without the treatment and it is in their best interests to receive treatment

Question 47

Is there an age limit for Gillick competence?

Answer 47

There is no lower age limit to Gillick competence but clearly the younger the patient, the more the health care practitioner will have to justify how the assessment of maturity and best interests was made

Question 48

What must all clinical trials be approved by first in order for consent to be valid of CTIMP (consent to clinical trials of investigated medicinal products)?

Answer 48

All clinical trials must first be approved by a research ethics committee.