Medical Law - Consent & Confidentiality

Question 1

What are the 3 conditions for valid consent?

Answer 1

1. Free will - no coercion
2. Patient has capacity
3. Patient fully informed

Question 2

According to the Mental Capacity Act 2005, what right do over 16 year olds have?

Answer 2

The right to make their own decisions unless they have been proved to lack the capacity to make the decision themselves

Question 3

Can you assume that someone can’t make a decision because they have a particular medical condition or cognitive disability?

Answer 3

No - e.g. an adult with DS has learning difficulties but doesn’t mean they cannot make particular decisions themselves

Question 4

How is capacity time and decision dependent?

Answer 4

Person may have capacity to make one decision but not another, or to make a decision at one time but not at another if capacity fluctuates

Question 5

What is the functional test for capacity?

Answer 5

If they are able to:

a) Understand the information
b) Retain the information
c) Use or weight that information as part of a process of decision making
d) Communicate decision

Question 6

What does a failure of the functional test of capacity have to be caused by?

Answer 6

An impairment of or disturbance in the functioning of the mind or brain –> ensures there is an objective basis to judgement of lack of capacity

Question 7

Are patients able to refuse treatment even if it leads to their death?

Answer 7

Yes

Question 8

According to the Family Law Reform Act 1969, what can 16-18 year olds do regarding treatment?

Answer 8

Can consent to treatment and it is not necessary to obtain any consent from his parent or guardian.

The absence of consent would constitute a trespass in his person.

Question 9

What is Gillick competency used to decide?

Answer 9

Whether a child (below 16) is able to consent to medical treatment by judging capacity

If a child is able to understand, the parental rights are terminated (in face of parental opposition or without parental knowledge)

Question 10

What are the Fraser Guidelines?

Answer 10

Apply specifically to contraceptive advice under 16. They state that a doctor can give contraceptive advice and treatment so long as:

1) The girl will understand his advice
2) He cannot persuade her to inform her parents or allow him to inform her parents
3) That she is likely to begin or continue having sexual intercourse with or without contraceptive treatment
4) That unless she receives contraceptive advice or treatment her physical or mental health is likely to suffer
5) Her best interests require him to give her contraceptive advice or treatment without the parental consent

Question 11

What was the Gillick case?

Answer 11

Mrs Gillick sought a declaration that doctors providing under 16 year old girls with contraception without parental consent was unlawful

Question 12

What can refusal of treatment by a 16 or 17 year old be overruled by?

Answer 12

A court but not their parents

Question 13

What can refusal of treatment by an under 16 year old be overruled by?

Answer 13

A court or their parents (even if the child is Gillick competent)

Question 14

According to the BMA, what does the duty of confidentiality cover?

Answer 14

All identifiable patient information, whether written, computerised, visually or audio recorded or simply held in the memory of health professionals

Question 15

When does the legal duty of confidentiality arise?

Answer 15

When someone knows or ought to know that the information she has acquired is confidential (this is the case in the doctor-patient relationship)

A doctor has a legal duty of confidentiality even if they have not explicitly agreed with the patient to keep the information confidential

Question 16

What does the Data Protection Act provide?

Answer 16

A framework to ensure that any personal information is handled properly

Question 17

How does the Data Protection Act work?

Answer 17

1. By imposing duties on those who process data: data must be accurate, up to date and secure
2. It provides individuals with important rights in relation to data held about them including;
   - a right of access to a copy of the information
   - a right in certain circumstances to have inaccurate personal data rectified, blocked, erased or destroyed
   - a right to claim compensation for damages caused by a breach of the Act

Question 18

When can a patient’s access to their medical records be refused?

Answer 18

If it is judged that it will cause serious harm to the physical or mental health of the patient or that it will cause serious harm to a third party

Question 19

How can problems with confidentiality regarding electronic records arise?

Answer 19

Ease of access can make it easier to breach confidentiality

Medical students and doctors must be extra vigilant (e.g. patients’ results shouldn’t be left on screens and screens should not be in full view of other people)

Question 20

How can inadvertent breaches of confidentiality arise?

Answer 20

• If staff discuss cases in public places
• Carrying written records in public places in a way that others can see the content
• Leaving records exposed to the public gaze

Question 21

What is the guidance regarding disclosure of information among members of healthcare team?

Answer 21

Consent is assumed - all guidance adopts view that patients have to opt-out by objecting to such disclosure rather than opt-in by giving explicit consent

Question 22

When is disclosure allowed regarding public interest?

Answer 22

For the prevention of disorder or crime, for the protection of health or for the protection of the rights and freedoms of others

Question 23

When is disclosure allowed regarding prevention of harm to others?

Answer 23

Disclosing information to protect individuals or society from risks of serious harm, such as serious communicable diseases

Must weigh the harms that are likely to arise from non-disclosure against the possible harm arising (both to the patient and doctor-patient trust) from the disclosure

Question 24

What is required when disclosing patient information?

Answer 24

Requires that you inform the patient that you intend to disclose confidential information to protect others unless:

1) The patient is not competent to give consent, in which case you should consult the patient’s representative
2) You have reason to believe that seeking consent would put you or others at serious risk of harm
3) Seeking consent would be likely to undermine the purpose of the disclosure (e.g. by prejudicing the prevention or detection of serious crime)
4) Action must be taken quickly (e.g. in detection or control of outbreaks of communicable diseases and there is insufficient time to contact the patient
5)

You must document all reasoning in patient’s records

Question 25

Should you refuse to listen to a patient’s partner, family, carer etc on the basis on confidentiality?

Answer 25

No - but you should make it clear that you may tell the patient about the conversation (if it has influenced your assessment and treatment of the patient)

Question 26

Do relatives have a right to information?

Answer 26

No (unless they are parent/guardian of child patient below 16, or have a power of attorney in relation to healthcare decisions for an adult who lacks capacity)

Question 27

If a patient lacks capacity, can you consult friends or relatives?

Answer 27

Yes - but only share info that is relevant at the time

Question 28

Does the duty of confidentiality continue after death?

Answer 28

Yes - any info requested to be kept from the relatives during the patient’s life should continue to be kept

Question 29

When is the doctor permitted to disclose info to relatives?

Answer 29

If withholding info could put them at serious risk of harm

Question 30

If a patient is found to have a gene mutation in the breast cancer gene BRCA1, their relatives may be at very high risk of developing breast cancer. If they are informed they may be able to access early screening or decide upon risk-reducing surgery.

What should a doctor do if the patient doesn’t wish to disclose this information?

Answer 30

Weigh up the duty of confidentiality against the possible harm for the relatives (if doctor discloses, they should try to anonymise the data as much as possible)