Legal Aspects of Consent in Medical Practice

Question 1

what is consent?

Answer 1

• Consent to treatment means a person must give permission before they receive any type of medical treatment, test or examination
• This must be done on the basis of an explanation by a clinician with appropriate experience and expertise
• Consent from a patient is needed regardless of the procedure
• The principle of consent is an important part of medical ethics and international human rights law

Question 2

what are the different expressions of consent?

Answer 2

Implied or verbal agreement for non invasive treatments e.g. blood pressure, ECG

Express consent for minor or routine investigations e.g. blood letting, intravenous access, ABG

Written consent for procedures that involve higher risk e.g. surgical intervention

Examination of intimate zones with lack of adequate consent renders the practitioner liable of indecent assault

Examination or treatment without appropriate consent or authority is an invasion of privacy which could constitute common assault

*All intimate examinations require the presence of a chaperone. Inform the patient and document this request in the medical notes. Enquire about gender specification.*

Question 3

Any consent obtained should be ________

Answer 3

informed

Question 4

Any consent obtained should be informed

what is informed consent?

Answer 4

The patient/individual should be informed of the practicalities of procedure, benefits/risks of procedure and benefits/risks if procedure not done or refusal of treatment

Question 5

how is consent obtained?

Answer 5

Medical decisions should be discussed and made as a partnership with your patients to ensure good care.

In so doing, you must:

• listen to patients and respect their views about their health
• discuss with patients their diagnosis, prognosis, treatment
• share with patients the information they want or need in order to make decisions
• maximise patients’ opportunities, and their ability, to make decisions for themselves - autonomy
• respect patients’ decisions

Question 6

Always _____ patients decision even if it is at odds with what you believe or it is refusing life altering treatment

Answer 6

respect

Question 7

The doctor uses specialist _________, experience and ______ judgement, alongside the patient’s ______ and understanding of their condition to identify best investigations or __________ for the patient

Answer 7

knowledge

clinical

views

treatments

Question 8

The doctor may recommend a particular option which they believe to be best for the patient, but they must not put ________ on the patient to accept their advice-no ________

Answer 8

pressure

coercion

Question 9

If the patient asks for a treatment that the doctor considers would not be of overall ______ to them, they do not have to ________ the treatment. However, they should explain their reasons to the patient, and explain any other _______ that are available, including the option to seek a ________ opinion.

Answer 9

benefit

provide

options

second

Question 10

how and what decisions should you record?

Answer 10

You must use the patient’s medical records or a consent form to record the key elements of your discussion with the patient

This should include the information you discussed, any specific requests by the patient, any written, visual or audio information given to the patient, and details of any decisions that were made

Question 11

How do you review a decision with a pateint?

Answer 11

Before beginning treatment, you or a member of the healthcare team should check that the patient still wants to go ahead and respond to any new or repeated concerns or questions they raise. This is particularly important if:

• Significant time has passed since the initial decision was made.
• There have been material changes in the patient’s condition, or in any aspect of the proposed.

Question 12

Consent is directly dependent upon capacity

what is capacity?

Answer 12

Patients who have capacity (that is, who can understand, believe, retain and weigh the necessary information) can make their own decisions to refuse treatment, even if those decisions appear irrational to the doctor or may place the patient’s health or their life at risk

An individual’s capacity to make particular decisions may fluctuate or be temporarily affected by factors such as pain, fear, confusion or the effects of medication/illicit drugs/alcohol

Assessment of capacity must be time and decision-specific

Question 13

what are some obstacles to capacity?

Answer 13

Impaired intellectual/mental capacity

Intoxication (drugs or alcohol)

Unconsciousness

Communication difficulties-hearing impaired, mute, language

Age

Question 14

How are decisions made for people with Impaired intellectual/mental capacity?

Answer 14

Making decisions about treatment and care for patients who lack capacity is governed in England and Wales by the Mental Capacity Act 2005, and in Scotland by the Adults with Incapacity (Scotland) Act 2000.

The legislation sets out the criteria and procedures to be followed in making decisions when patients lack capacity to make these decisions for themselves. It also grants legal authority to certain people to make decisions on behalf of patients who lack capacity.

In Northern Ireland, there is currently no relevant primary legislation; and decision-making for patients without capacity is governed by the common law.

Question 15

For the purposes of the Act, “incapable” means incapable of what?

Answer 15

• acting on decisions; or
• making decisions; or
• communicating decisions; or
• understanding decisions; or
• retaining the memory of decisions
• in relation to any particular matter due to mental disorder or inability to communicate because of physical disability

Question 16

what are the Principles of the Act?

Answer 16

• Principle 1 - any action or decision taken must benefit the person
• Principle 2 - least restrictive option
• Principle 3 - take account of the wishes of the person
• Principle 4 - consultation with relevant others
• Principle 5 - encourage the person to use existing skills and develop new skills

Question 17

___________ a person’s welfare and managing his/her financial affairs

Solutions focus on the needs of the ________

The Act does not authorise action in every matter where the person may have impaired _______

Certain decisions can _____ be made on behalf of a person who lacks capacity, for example, consent to marriage or making a will.

The Act imposes other restrictions on what a proxy is able to do, for example, a welfare attorney or guardian or intervener cannot place the person they are acting for in a mental hospital against his/her will or consent to certain treatments on his/her ______

Answer 17

Safeguarding

individual

capacity

never

behalf

Question 18

what is a power of attorney

Answer 18

This is a means by which individuals, whilst they have capacity, can grant someone they trust powers to act as their continuing (financial) and/or welfare attorney

One or more persons can be appointed. A continuing (financial) power of attorney continues or commences (where specified) on the granter’s loss of capacity. A welfare power of attorney only comes into effect in the event of the granter’s loss of capacity

All powers of attorney under the Act must be registered with the Public Guardian

Question 19

If a person does not have the capacity to make a decision about their treatment and they have not appointed a lasting power of attorney, what happens?

Answer 19

the healthcare professionals treating them can administer treatment if they believe it’s in the person’s best interests

Clinicians must take reasonable steps to discuss the situation with the person’s friends or relatives before making these decisions

If an agreement cannot be reached between family and clinicians, the case may be taken to court

Question 20

What happens if someone has impairment by drugs/alcohol or unconsciousness

Answer 20

If possible wait until the patient has sobered up/regained consciousness before commencing treatment

In a life-threatening situation, healthcare professionals may act on the behalf of the patient to perform a procedure in their best interest

Question 21

if someone has Communication Difficulties, how is this overcome?

Answer 21

• Next of kin
• Braille information leaflets/consent form
• Sign language
• Interpreter via telephone or in person

Question 22

what is termed an adult and a child?

Answer 22

In England, Northern Ireland and Wales, a child is someone who has not yet reached their 18th birthday

In Scotland the definition of a child varies.In most situations, a child is someone who is under 18. But in some contexts, for example Children’s Hearings and child protection orders, a child is defined as a person under 16 years of age

Question 23

People aged 16 or over are entitled to consent to their own treatment. This can only be overruled in exceptional circumstances.

Like adults, young people (aged 16 or 17) are presumed to have sufficient capacity to decide on their own medical treatment, unless there’s significant evidence to suggest otherwise.

what about people under the age of 16?

Answer 23

Children under the age of 16 can consent to their own treatment if they’re believed to have enough intelligence, competence and understanding to fully appreciate what’s involved in their treatment- Gillick competent

Question 24

what is Gillick Competence?

Answer 24

“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent” (Gillick v West Norfolk, 1984).

Question 25

what is the difference between Gillick competency and Fraser guidelines?

Answer 25

A 1985 judgement by the House of Lords on a legal case which looked specifically at whether doctors should be able to give contraceptive advice or treatment to under 16-year-old girls without parental consent.

The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the House of Lords (1985), which apply specifically to contraceptive advice.

Question 26

When can consent can be overruled in the young person?

Answer 26

If a young person refuses treatment, which may lead to their death or a severe permanent injury, their decision can be overruled by the Court of Protection -the legal body that oversees the operation of the Mental Capacity Act (2005)

The parents of a young person who has refused treatment may consent for them, but it’s usually thought best to go through the courts in this situation

Question 27

Take home messages:

For consent to be valid, it must be ______ and ______, and the person consenting must have the _______ to make the decision

• voluntary - the decision to either consent or not to consent to treatment must be made by the ______, and must not be ________ by pressure from medical staff, friends or family
• informed - the person must be given all of the _________ about what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments, and what will happen if treatment does ___ go ahead
• capacity - understand, ______ and believe the information given to them and can use it to make an _________ decision

Answer 27

voluntary

informed

capacity

person

influenced

information

not

retain

informed