Consent, confidentiality and children

Question 1

What is the principle function of the GMC?

Answer 1

Maintains a list of doctors

Question 2

What is the principle function of the BMA?

Answer 2

Trade union

Question 3

What is the principle function of the MDU and MPS?

Answer 3

Medical Defence Union and Medical Protection Society – protection.

Question 4

What is the principle function of the CQC?

Answer 4

Care Quality Commission – ensure quality

Question 5

What is the principle function of NICE?

Answer 5

Set out guidelines that ensure value

Question 6

What is the difference between common and statute law?

Answer 6

Common law is based on tradition (local custom before 1066) and heavy weight on judicial interpretation in cases; Statute law is passed in Parliaments and effectively include executive powers by government agencies.

Question 7

What is the difference between criminal and civil law?

Answer 7

Criminal law seeks to punish for.an offence; civil law seeks to achieve a remedy such as compensation for the injured party. In civil law, the aggrieved party is the claimant and the defending party is the defendant.

Question 8

What is Tort law?

Answer 8

A branch of civil law that is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act e.g. medical negligence.

Question 9

What are the three types of court and their function?

Answer 9

Coroners Court: it is not a ‘court’, but describes the jurisdiction that coroners have to determine the cause of death in suspicious death circumstances; Criminal Court; Civil Court

Question 10

What is the court hierarchy?

Answer 10

Criminal law: dealt in crown court; civil law: dealt in county or high court. In each case, appeals are taken to the court of appeals and then the supreme court.

Question 11

What is the case of R v Flattery (1872)?

Answer 11

The defendant, John Flattery posed as a medical doctor. The complainant, a young woman aged 19, consulted JF with respect to an illness she was suffering, accompanied with her mother. JF advised surgery. Under the pretence of performing surgery, JF has sexual intercourse with the complainant. The crown brought proceedings against JF under statute law, charging him with rape.

Question 12

What is the issue with the R v Flattery case?

Answer 12

Whether submission to sexual intercourse amounted to consent. The complainant has submitted to JF’s advances, but only on the belief that he was treating her for her seizures. But submission did not amount to consent by law where that consent has been obtained by fraud.

Question 13

When is no consent to into a criminal court or civil court?

Answer 13

When no consent amounts to assault, such as R v Flattery, it is taken into a criminal court. When no consent amount to the claimant claiming for damages, it is taken into a civil court.

Question 14

What are the exceptions to consent? (x4)

Answer 14

Emergency (consent would be damaging to a patient and there is genuinely no time to seek permission), implied consent (such as lifting their top when asked permission to examine), waiver (patient doesn’t want to know the details and just want the treatment to occur), best interests (patient unconscious or not be able to take part in a discussion about their situation e.g. severe dementia – lacks CAPACITY).

Question 15

What are the presumptions about consent for adults? What age does this apply?

Answer 15

From age 16 onwards. Patient is assumed to have mental capacity to make a decision unless there is contrary evidence.

Question 16

What are the presumptions about consent for children? What age does this apply?

Answer 16

When patient is less than 16. Are assumed to not have mental capacity to make a decision regarding treatment unless there is contrary evidence.

Question 17

What is the definition of valid consent?

Answer 17

A COMPETENT person who understands the nature of the treatment based on information about MATERIAL RISKS WITHOUT COERCION (including from family and friends).

Question 18

What are the four parts of competence?

Answer 18

Understands the information, retains the information, uses the information to make a decision, and communicates the decision.

Question 19

What is the concept of broad terms in consent?

Answer 19

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 and scared off from a potentially useful and safe treatment. The legal position is that a doctor should strike a balance and provide enough information that their patient would reasonably want to know. This includes, when a patient asks a question, the patient must answer truthfully.

Question 20

What should a doctor do to obtain valid consent when there is coercion from family and friends?

Answer 20

The doctor, in discussions, must remove patient from the coercive environment.

Question 21

What are the five key principles of the Mental Capacity Act 2005?

Answer 21

1. A presumption of capacity
2. The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions
3. Patient has the right to make what might be seen as an eccentric or unwise decision
4. The statute must be used in best interests
5. Use of the stature should be the least restrictive of a patient’s basic rights and freedoms

Question 22

How does the Mental Capacity Act 2005 assess capacity? (x4 parts)

Answer 22

It is a decision-specific test. A person is unable to make a decision for themselves if they are unable to (a) understand the information, (b) retain information, (c) use or weight that information, (d) communicate their decision. Note how this is the same as COMPETENCE.

Question 23

What is Bolam v Friern, 1957?

Answer 23

English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases. It states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. For example, in this case, Mr Bolam agreed to undergo electro-convulsive therapy, but not given any muscle relaxant or restrained, so flailed about violently and broke various bones. He sued the hospital for negligence, but the court ruled in favour of the hospital on grounds that the general medical opinion that Mr Bolam’s treatment was what was considered acceptable practice (medical opinion at the time was opposed to use of muscle relaxant drugs, manual restraints were seen to increase fracture risk and patients were not routinely told of risks in small procedures).

Question 24

What is Sidaway v Bethlem, 1985?

Answer 24

English tort law case. Concerned the duty of a surgeon to inform a patient of the material risks before undergoing an operation. The surgeon did not mention when obtaining consent that there is a 1% risk of paraplegia. The patient developed paraplegia and sued the surgeon. The court ruled that consent does not need to require an explanation of ALL the side-effects. The reason given by the court was that you don’t want to list all the risks and cause more harm to the patient than good when they refuse the operation.

Question 25

What is Bolitho v Hackney? Note?

Answer 25

English tort case: 2-year-old was suffering with croup and doctors were informed on two occasions of respiratory exacerbations but did not check the boy. After the second occasion, the child suffered respiratory and cardiac arrest and, despite being resuscitated, was severely brain damaged and later died. The mother sued and argued that all would have been well if her son had been intubated. The doctor argued that they would not have intubated the patient if they had seen him, and that this decision was consistent with a respectable body of professional opinion. The court dismissed the case arguing that causation must be proved to bring a claim in negligence, and there was no causation here. NB: In Bolam’s test, professional opinion relied upon cannot be unreasonable or illogical. However, in this case, the court is commented to have departed slightly from Bolam’s test: this is because the court also ruled that in “a rare case”, they CAN rule that the body of opinion is unreasonable, even if the professional body itself is not unreasonable.

Question 26

What is Montgomery v Lanarkshire, 2015?

Answer 26

English tort law case: overturned Bolam and Sidaway, ruling that a patient should be told whatever they want to know, not what the doctor thinks they should be told. In this case, a woman with diabetes and small stature experienced complications with vaginal delivery of her new born, but the obstetrician had not disclosed the increased risk of the specific complication, despite the patient asking if the baby’s size was a potential problem. Lord Kerr and Reed: “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk” “the assessment of whether a risk is material cannot be reduced to percentages….. the assessment is therefore fact sensitive and also sensitive to the characteristics of the patient”.

Question 27

What is re T?

Answer 27

Refusal of medical treatment.

Question 28

What if a patient refuses treatment and is not competent?

Answer 28

A patient is not competent if they do not fulfil any ONE of the four criteria for competence. If this is the case, then you cannot obtain valid consent, and the doctor is obliged to act in the patient’s best interests.

Question 29

What are the exceptions to confidentiality? (x5)

Answer 29

1. The multidisciplinary team (through implied consent by presence i.e. by them coming to hospital, we take implied consent that they understand that more than one person is involved in their care)
2. With patient consent (when sharing information with patients not actively involved in the patient’s care. NB: most relatives do not have rights unless a parent of child who is not Gillick competent. Next of kin gain a right to be consulted where practical to do so under the Mental Capacity Act)
3. Required by statute e.g., notification of death, termination, treatment of addict with specified drugs, notifiable infectious disease.
4. Assisting the police e.g., approved under a legal process, to aid police in suspected terrorism cases, to aid police request in IDENTIFYING drivers suspected of offences.
5. In public interest but must only disclose relevant information e.g. fitness to drive

Question 30

What examples are there of statutory disclosure of confidential information? (x5)

Answer 30

1. Road Traffic Act 1988
2. Prevention of Terrorism Act 1989
3. s60 Health and Social Care Act 2001
4. Public Health (Control of Disease) Act 1984
5. Supreme Court Act 1981 (now called Senior Courts Act)

Question 31

Confidentiality and wider public interest: What is W v Egdell 1990?

Answer 31

Restricted patient detained under MHA 1983. History of serious violence. Refused to consent to medical officer providing report to Mental Health Review Tribunal regarding his continued fascination with explosives. Medical officer still disclosed the report and patient claimed breach of confidence. Court found that the disclosure was necessary in the public interest and all relevant information to protect public safety was issued.

Question 32

What is a Caldicott guardian?

Answer 32

A senior member of NHS staff responsible to ensure patient data is kept secure. Have overall responsibility for patient confidentiality.

Question 33

What is the background to Caldicott guardians?

Answer 33

In 1997, the Caldicott committee presented its report on patient confidentiality following concerns about patient information and security.

Question 34

What are Caldicott principles? (x6)

Answer 34

o One should justify the purpose of holding patient information

o Information on patients should only be held if necessary

o Use only the minimum amount of information that is required

o Information access should be on a strict need to know basis

o Everyone in the organisation should be aware of their responsibilities

o The organisation should understand and comply with the law

Question 35

What happens to consent and confidentiality when information is anonymised?

Answer 35

There is no obligation of confidence when information is anonymised. Consent is not needed.

Question 36

What is the exception to no consent for sharing anonymised information?

Answer 36

Where a patient can be identified because the symptoms are rare or where the patient is part of a small community, then an obligation of confidence is owed despite anonymisation of patient information.

Question 37

Confidentiality after death: What is Bluck v Information Commissioners 2007?

Answer 37

Negligence was admitted and damages paid to the husband of Mrs KD following her death. KD’s mother applied for the hospital notes under FOI. The hospital refused access without the next of kin’s permission who refused.

Question 38

When can confidentiality by breached after death? (x6)

Answer 38

1. Legal: Assisting police or for Coroners inquiry
2. Under s251 of NHS Act 2006; for research in public interest or education
3. Death certificates
4. National audits
5. When a partner, close relative, or friend asks for information about the CIRCUMSTANCES of an adult’s death, and you have no reason to believe that the patient would have objected to such a disclosure
6. When a person has a right of access to records under the Access to Health Records Act 1990.
7. If someone enquires about MORE information than just CIRCUMSTANCES of death, and you are not sure whether the patient would have objected to disclosure, you must consider whether the information will cause distress, or be of benefit to, the patient’s partner or family. You must also consider the purpose of the disclosure.

Question 39

What are the principles of the Children Act 1989? (x5)

Answer 39

1. The child’s welfare is paramount and primary to the rights of the parents (even if this creates an unjust situation for either or both of the parents)
2. Presumption of no order: court orders will only be made where this will benefit the child. In most cases, the courts will not force an order upon the parents.
3. Welfare in practice: wherever possible, children should be brought up and cared for by their families. Agencies should work in partnership with parents, and parents continue to have parental responsibility, even if their child is no longer living with them. Parents with children in need should be helped to bring up their children themselves.
4. Parental responsibility: the act formalised that the parents have parental responsibility over their child and their decisions.
5. Abuse of children: the local authority is obliged to intervene in cases where there is physical, sexual or emotion abuse, or neglect. Each local authority is required to keep a list of those considered ‘at risk’.

Question 40

What is the Family Law (Reform) Act 1969?

Answer 40

Outlines age of consent as 16.

Question 41

What is Gillick competence? Age limit?

Answer 41

Aka Fraser competence. From Gillick v West Norfolk: the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed. The case arose from a campaigner who sought that prescribing contraception to children under 16 without parental consent was illegal. The case was decided because the child’s best interests of not getting pregnant overrides parental consent. There is no lower age limit to the Gillick Exception.

Question 42

Who are those with parental responsibility? (x4 cases)

Answer 42

1. Parents (if married or on birth certificate)
2. Mother (if unmarried and no agreement)
3. Legally appointed guardian
4. Local authority with a care or protection order

Question 43

Principles of consent in children: increasing age, over 16, parental responsibility?

Answer 43

o Increasing autonomy is given to a minor with increasing age, maturity and understanding

o Minors over the age of 16 can accept treatment but they cannot refuse life threatening treatment. In contrast to 18-year olds.

o Those with parental responsibility can consent to treatment of a minor, but they must not allow the minor to come to any serious harm, and must be seen to be acting in their best interests.

Question 44

Children and Confidentiality? Gillick competent and not Gillick competent? Under 16 and over 16?

Answer 44

The decision to maintain or breach confidentiality in children is based on BEST INTERESTS. If the child is under 16 and not Gillick competent, the doctor can breach confidentiality if in child’s BEST INTERESTS or with PARENTAL CONSENT. If the child is Gillick competent, then he/she can give or refuse consent to disclosure, but confidentiality can still be lawfully breached in the child’s best interests. If the child is over 16, they are presumed competent and disclosure should be made with their consent, but confidentiality CAN STILL BE BREACHED if in the child’s best interests up until the age of 18. HOWEVER, it will generally not be in the best interests of a competent child to override their competent refusal.

Question 45

Can a child refuse treatment? Although…

Answer 45

No – Gillick was about making decisions that fit a patient’s best interests. If a treatment refusal compromises an under 16’s best interest, then Gillick Exemption does not apply. If under 16, overriding refusal does not need a court order, unless 16-17. ALTHOUGH they cannot refuse, you should attempt to gain agreement.

Question 46

What should happen if there is parental disagreement over the consent that is given to their child’s care?

Answer 46

Seek court approval.

Question 47

No one with parental responsibility in an emergency?

Answer 47

Medical treatment can be given without consent under the legal principle of necessity.

Question 48

Patient dies from Cysticercosis, a disease caught from eating infected pork. The patient’s family, who are religious Jews, do not want any mention of this disease on the death certificate. What do you do?

Answer 48

Discuss the matter with the coroner. Your professional duty of confidentiality continues after death. However, the completion of a death certificate is a statutory requirement, though the coroner can advise when there is a query, as to the level of detail required.

Question 49

!!! P comes into A&E following a Road Traffic Accident smelling of alcohol. He tells you that he thinks he knocked over ‘some awful statue’ on the village green. A passer-by took down P’s number plate. The receptionist has confirmed to the police that P is in A+E. The police want confirmation of P’s address and whether he has been drinking alcohol. Can B, the A&E ST1 give the police this information without permission from S?

Answer 49

B may only give the address. Under the 1988 Road Traffic Act there is a statutory requirement to provide information to assist the police in the identification of a person charged with a road traffic offence. However, under the Act there is no statutory requirement to given any other personal information or to provide evidence unless you are directed to by the Court In Confidentiality: NHS Code of Practice 2003 the Department of health stabs that ‘theft, fraud and damage to property’ would not usually provide reasonable justification for breaching confidentiality.

Question 50

F is a 7-year-old girl brought into A+E by her 16 year old sister, S, who was looking after her for the afternoon because their mother had to collect F’s brother from a school trip. F has been vomiting and it transpires that S had been sharing cannabis cookies with a friend. S is worried that F may have eaten some when she was not looking. S says ‘my mother will kill me’ if she finds out about the cannabis. F shrugs her shoulders when asked about the cookies and says she doesn’t want to get her sister into trouble. You are the FY2 in A+E. What should you do?

Answer 50

F’s mother should be informed as it is in F’s best interests. Your duty of confidentiality is to the patient, not to S. F is a child and therefore, while you do owe F a duty of confidentiality, you primary legal obligation is to act in F’s best interests. In this situation, it is clearly necessary that you discuss the situation with the mother. S’s wishes are only material inasmuch as they pertain to F’s best interests.

Question 51

A patient is seen in the infectious disease clinic. He is HIV positive with no current need of anti-retroviral treatment. He admits to being sexually active but is adamant that he always uses a condom He does not want his GP to know of this diagnosis. Can the clinic doctor. F. nevertheless write to the GP and inform her of the man’s diagnosis?

Answer 51

F should respect the refusal to contact the GP. HIV is not a notifiable disease. In this case, in the absence of consent, disclosure is only lawful if it is necessary to prevent serious harm to others. The patient says that he always uses a condom but even if he didn’t, informing his GP would not prevent serious harm to his sexual contacts (unless his GP had the contact details for all of them!).

Question 52

Britney is a 9-year-old who needs an operation to her broken ankle within the next 48 hours following a sporting accident. Both her parents are busy. How should the doctor proceed?

Answer 52

Consent has to be obtained as this is not an emergency. Consent can be obtained via oral permission from either one of the parents – this is sufficient.

Question 53

Does any consent form need to be signed for a procedure to be carried out?

Answer 53

Consent does not need to be in writing; only ORAL. Written consent is only a RECORD of consent.

Question 54

What are the 6 key principles of GDPR?

Answer 54

1. Processed lawfully 2. Collected for specified, explicit and legitimate purposes 3. Adequate, relevant and limited to what is necessary 4. Accurate and kept up to date 5. Kept in a form which permits identification of data subjects for no longer than is necessary 6. Processed in a manner and stored securely

Question 55

.

Answer 55

The developments in HIV treatment and outcomes, in combination with the fact that the advanced decision was made 30 years ago, means that the advanced decision is not applicable, and so doctors must act in best interests.