Informed consent

Question 1

What does the legal doctrine of informed consent consist of? (7)

Answer 1

1. The tort of battery
2. Defence to the tort of battery
3. Express consent
4. Implied consent
5. Standard of care in informed consent
6. Causation in informed consent
7. Exceptions to the legal doctrine of informed consent

Question 2

What’s the tort of battery?

Answer 2

Not warning the patient- missing a key part of info of medical treatment/clinical procedure
Can contain:
- Failing to disclose nature of clinical procedure/treatment
- Failing to disclose lack of clinical qualifications
- Carrying out unnecessary clinical procedure

Question 3

What does defence of committing tort of battery consist of? (3)

Answer 3

Patient must satisfy:

1. Informed consent must be freely given
2. Patient must be capable of giving informed consent
3. Patients consent must be an informed consent- they must be told details about procedure

Question 4

What are the 2 types of informed consent?

Answer 4

1. Implied consent

2. Express consent

Question 5

What is express consent?

Answer 5

When patient clearly states they are willing to undergo med treatment/clinical procedure
can be verbal/written-consent form
But nature, benefits, risks must be explained before when signing consent form

Question 6

What is implied consent?

Answer 6

• Given many times in general clinical practice
• for clinical examinations/investigations/treatment
• e.g if patient holds their arm out for blood sample

Question 7

Standard of care in informed consent

Answer 7

• Patients right to know- and autonomy
• med pract would breach their duty if they have failed to warn patient of a ‘material risk’
• ‘Patient centred care’

Question 8

Causation in informed consent- 3 main elements?

Answer 8

1. Was the patient informed of the complication?
2. If not- would have a respected body of med practitioners informed patient of complication?
3. If patient had been informed of complication would they have gone ahead of operation/procedure?

Question 9

What are the 3 legal exceptions to the legal doctrine of informed consent?

Answer 9

1. Emergency
2. Minors
3. Mental capacity

Question 10

Emergency- legal exception

Answer 10

When patient needs urgent treatment

may not be possible to seek tier consent - might be unconscious

Question 11

Minors- legal exception

Answer 11

Informed consent given on behalf of their parents/legal guardians- to procedure/treatment to which a reasonable parent would give consent
Best interests of minor
Child giving consent depends on their maturity, understanding, and nature of consent needed- must be capable of making a reasonable assessment of advantages/disadvantages of treatment

Question 12

What are the Fraser guidelines?

Answer 12

• Med pract can provide treatment and advice to minor under 16 if they are satisfied that:
  1. U16 will understand advice
  2. Med pract can’t persuade minor to inform their parent
  3. Minor likely to have sexual intercourse with/without contraceptive treatment
  4. if minor doesn’t receive contraceptive advice/treatment their physical and mental health will suffer

Question 13

Mental capacity Act 2005- 5 principles?

Answer 13

1. Patient presumed to have mental capacity unless it is clinically established they are
2. Patient not to be treated as lacking in mental capacity unless steps taken to assess capacity without success
3. Patient not be considered lacking mental capacity if they have made an unwise decision
4. Any act in patients bests interests
5. Before any act is done- any act less restrictive of patient’s right and freedom of action should be considered