Ethics Flashcards
What is informed consent?
- Informed consent is the central legal doctrine that determines the legitimacy of interactions between two or more parties, individuals and institutions - of course assuming that the interactions are in themselves lawful
what settings does consent apply to
medicine and the wider society
what is the legal doctrine?
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case
- it constitutes the minimum our medicine regards as ethical
When should consent be sought for and by whom and who from
- all medical staff including professionals and students must seek consent from every patient with mental capacity prior to every intervention
- if the patient has no capacity, consent must be sought from their legal representative
- if no representative is available and/or the treatment cannot be delayed one may proceed without consent, based on the doctrine of best interests or the doctrine of necessity
What are the implications of failure to seek consent
- failure to seek valid consent when require is a criminal, civil and professional offence
- might result in charges of assult and battery as well as losing one’s licence to practise
Name the three conditions of valid consent
- the patient must have mental capacity (capacity)
- The consent must be informed (informedness)
- the consent must be voluntary (voluntariness)
A patient who has mental capacity…
has almost absolute right to refuse any intervention including life-saving ones
- in public health context the right to refuse mya be subject to restrictions
what does the validity of consent depend on
- whether or not its conditions have been met
what are the different forms of consent
- consent given directly by the patient
- consent obtained via authorising their doctor to decide on their behalf
- consent obtained via a shared decision with their doctor, relatives, friends and/or religious leaders
- consent by proxy
- advance directives - living wills
- explicit (express ) consent
- implied consent
- opt-out consent
when should consent be signed/witnessed/recorded
- when the risks of intervention and litigation are relatively high
- these practices only severe as evidence to the effect that consent has been given
- have nothing to do with the validity
what are each of the conditions of valid consent subject to
– its own test
describe the tests of valid consent
- each condition of valid cosnent is subject to its own test
- the tests are binary - either all pass or fail
- the pass thresholds are set low
- Mental capacity - this must be established before seeking the patietns consent - capacity is thus the criterion of eligibility to give consent
- informedness and voluntariness must be established after consnet has been formed but before it is given- thus properites of the consent
- in case of dispute all three conditions or some of them may be assessed or reassessed retroactively, and the onus of proving the validity of consent rests with the person who seeks to challenge the legal status quo, be it the doctor, the patient or a relative thereof. The court’s decision will appeal to the civil standard of the balance of probabilities, as opposed to the criminal standard of beyond reasonable doubt
- one cannot determine the substantive(real) meaning of capacity, informedness and voluntariness by their test. this is because the tests only tell us what they actually check for, which may, in principle differ form the conditions they purport to establish
- the substantive meaning of capacity, informedness and voluntariness can only be deduced from the legal implications of valid consent which are
A - privatisation of responsibilities (each party takes responsibility for their own choice)
B - reciprocal exemption of liabilities ( no party can sue the other for the outcomes of their own choices)
C - the legitimacy of the interaction
what happens if consent is in dispute
in case of dispute, all three conditions or some of them may be assessed or reassessed retroactively, and the onus of proving the validity of consent rests with the person who seeks to challenge the legal status quo, be it the doctor, the patient or a relative thereof. The court’s decision will appeal to the civil standard of the balance of probabilities, as opposed to the criminal standard of beyond reasonable doubt
- the court has the final say
what are the legal implications of valid consent
- the substantive meaning of capacity, informedness and voluntariness can only be deduced from the legal implications of valid consent which are
A - privatisation of responsibilities (each party takes responsibility for their own choice)
B - reciprocal exemption of liabilities ( no party can sue the other for the outcomes of their own choices)
C - the legitimacy of the interaction
What are the tests of capacity
- in the ordinary default case (the normal adult) capacity is established by the presumption called “the presumption of capacity” a normal adult is thus presumed to have capacity for any choice they might make - this is referred to as a staus test
what happens in cases that dispute capacity
- capacity is established via an assessement of a set of certain cognitive faculties
- this test is referred to as ‘function test’ since faculties (potentialities) can only be determined by their corresponding functions (actualities)
- by this test - capacity is merely specific to a choice or a category of choices
What must the patient be shown to have in the function test of capacity?
- ability to distinguish between what one regards - within normative bounds - as good and bad for oneself
- ability to distinguish between what is normative regarded as true and false information
- ability to understand and process the pertinent information
- ability to remember the information long enough to make a choice
- ability to grasp the potential implications of ones choice
- ability to construct the choice subjectively rationally - that is to match it to the goals one thereby hopes to achieve
- agency - e.g. to make the choice and communicate it
the patient will pass this test if they demonstrate even the faintest sign of each of these faculties
Describe how they demonstrate the task of informedness
- the consenter must offer the consentee what the law regards as sufficient information strictly concerning the proposed intervention: nature, purpose, potential benefits and risks = the standard of disclosure
- the consentor must encourage the consentee to ask to ask any questions and make further inquiries as they see fit
Describe the test of voluntariness
- The consentor must give the consentee the options to refuse to give consent or rescind it at any point before the intervention takes place - no questions asked and no penalties incurred - if so the consent will be deemed voluntary
- the test is concerned neither with the forces that have shaped the decision, making capacity of the consentee nor with the forces that made them pick this option rather than any other, nor with the forces that had determined the scope, content and validity of the information available to them, nor with the nature of her options and of the forces that defined and confined them, it considers none of these forces even potentially coercive and considers then non-exisitent
- therefore the patient may be subject to certain forms of coercion without this affecting the voluntariness of their consent
What is the test of voluntariness not concerned with
- the test is concerned neither with the forces that have shaped the decision, making capacity of the consentee nor with the forces that made them pick this option rather than any other, nor with the forces that had determined the scope, content and validity of the information available to them, nor with the nature of her options and of the forces that defined and confined them, it considers none of these forces even potentially coercive and considers then non-exisitent
- therefore the patient may be subject to certain forms of coercion without this affecting the voluntariness of their consent
Consent is ..
- bilateral and reciprocal: the patient agrees to obtain the intervention, while the the doctor agrees to provide it.
- Both parties are consentors and consentees at one and the same time.
- It follows, then, that by exchanging their consents, the parties enter into some sort of a mutual agreement.
What is privatisation of responsibilities and reciprocal exemption of liabilities
Thus, if something were to go wrong for one party of no fault of the other, that party could only blame itself, e.g. - legally binding the parties must in advance also accept responsibility for their choices and their outcomes
what are legal fictions
factual premises that are taken to be true by the courts of law, irrespective of whether they are true or false and even though they might knowingly be false
what are the two tests of capacity
- The status test
- the function test