Theme 2: Consent Flashcards
What is consent relating to healthcare?
In relation to health care, it is a general legal and ethical principle that valid consent must be obtained before commencing
an examination, starting treatment or physical investigation, or providing care. This principle reflects the rights of a person to determine what happens to their own bodies or what shapes the care and support they receive. It is fundamental to good practice. The Nursing and Midwifery Council (NMC) professional practice document for nurses and midwives
What the NMC code say that registered nurses should do?
The Code (NMC, 2015a) states that registered nurses must:
(4.1) “balance the need to act in the best interests of all people at all times with the requirement
to respect a person’s right to accept or refuse treatment”, and
(4.2) “make sure that you get properly informed consent and
What are the two purposes for a nurse to gain consent
The requirement to gain consent has two purposes, one legal and the other clinical (Richardson V, 2013). The legal purpose is
to provide those delivering treatment with a defence to a criminal charge of assault or battery or a civil claim for damages for trespass to the person.
The clinical purpose comes from the fact that in most cases the co-operation of the person and the person’s confidence in the treatment
is a major factor in their consenting to the examination, treatment or physical investigation, or the provision of care
What is informed consent?
Several recent and less recent judicial
reviews and rulings by the Supreme Court have confirmed that the need for “informed consent” is a legal requirement (Montgomery v Lanarkshire Health Board [2015]).
. Sufficient evidence based information must be provided to the person to enable them to make a balanced and informed decision about their care and treatment. As well as a general explanation of the procedure there is also a duty to explain the risks inherent in the procedure and the risks inherent in refusing the procedure. Information must
also be provided regarding alternatives to the proposed intervention. This will assist the person to make the decision to consent to, or refuse consent for a particular intervention, whilst respecting their right to autonomously decide what happens to them. Failing to meet this legal duty can give rise to an action in negligence if the person is subsequently harmed.
What is meant by capacity to consent?
Principles underpinning UK mental health legislation and mental capacity legislation support “assumption of capacity”; that is, adults are presumed to have the ability to independently make decisions about and decide whether to agree to or refuse any aspect of their care, treatment and/or support.
A person who has capacity is able to provide or withhold consent for examination, treatment and/or care. If an adult makes a voluntary and appropriately informed decision to refuse care, treatment and/or support, then registered nurses must respect this decision.
How is somebody regarded to lacking capacity?
a) is not able to understand the information relevant to the decision;
b) is not able to retain that information for the time required to make the decision;
c) is not able to appreciate the relevance of
that information and to use and weigh the information as part of the process of making the decision; or,
d) is not able to communicate his or her decision (whether by talking, using sign language or any other means).
Who can provide consent?
Adults must provide consent on their own behalf. No one, including parents, relatives and health and social care professionals, can give or withhold consent on behalf of another adult unless special legal provision* for particular purposes has been made for this
What about consent for advanced decisions?
The law allows for an adult to make a decision to refuse a treatment in the future if that decision is made at a time when the person had the capacity to make such a decision. Registered nurses must be aware that failure to respect such an advance refusal can result in legal action.
Advance decisions cannot require registered nurses to provide particular treatments (which may be inappropriate or illegal, for example assisted suicide). However, registered nurses may still provide essential care such as keeping a person warm, offering oral nutrition and hydration, and pain relief. It does not include force-feeding or the use of artificial hydration and nutrition. The courts have recognised that a person with capacity to make decisions has the right to refuse food and fluids
What is the law on consent on children and young people?
Young people aged 16 -17 are entitled to provide consent for their own medical treatment in the same way as adults
In other circumstances, current case law is based on the view that persons aged under 16 years, may be competent to make decisions about their care and treatment when provided with sufficient information in a suitable format.
This is sometimes referred to as “Gillick” competence**. This principle recognises the concept of emerging capacity in children and young people
What is professional accountability?
Professional accountability means being personally answerable to the law of the land
for all actions or omissions (including what
is written or is not written, what advice/ information/communication is given or is not given) while fulfilling a contract as a health and social care employee.
What does the NMC code say about accountability?
Registered nurses must act first and foremost to care for and safeguard those in their care. Registered nurses must display a personal commitment to the standards of practice and behaviours set out in the NMC Code. NMC states that registered nurses must “show professionalism and integrity and work within recognised professional, ethical and legal frameworks” (NMC, 2015b).
Who should seek consent and when?
The registered nurse providing the treatment, investigation or care is responsible for ensuring that the person has given valid consent before the examination, treatment or care begins. If another health or social care professional has sought and received consent for an intervention, the registered nurse providing the treatment, investigation or care must be assured that valid consent has been provided and recorded before the intervention is undertaken.
What are the ways that consent can be given?
The validity of consent does not depend on the form in which it is given. Consent can be expressed in writing, verbally or non-verbally.
The process of consent
The patient must be informed, voluntary and competent
What is autonomy?
Autonomous agents (people) are ‘self-governing’
A person’s autonomy should not be undermined
Actions on behalf of others that do not allow one to be self-governing undermine one’s autonomy
