Week 6-Conset

Question 1

What is consent

Answer 1

Consent is the core of provision of treatment
Consent is more than a formality
Consent authorises a person – you or a doctor – to do what you would not
otherwise be permitted to do.
Consent needs to be ongoing

Question 2

What happens if no consent?

Answer 2

Failure to obtain consent, may lead to breach of contract in battery or in negligence
Assault – threat to touch/intimidate
Battery –touching a person without their permission
False imprisonment – restraining a person without their permission
There are potential Legal Consequences – breach of contract, battery, negligence

Question 3

Who is responsible for obtaining consent

Answer 3

Whose responsibility?
* the person carrying out the procedure.
How?
* Verbal – patient says yes or no
* Implied – patient holds out their arm for you to take their blood pressure
* In writing – Consent form
Consent is not transferrable

Question 4

Freely and voluntarily given

Answer 4

Consent must be freely and voluntarily given
It cannot be given under duress or coercion
Cannot be given with misrepresentation or fraud
Cannot tell the patient that if they don’t consent that they will be discharged –
* may be interpreted as a threat
It cannot be given freely if the patient’s will is compromised through being under
sedation
Beausoleil v The Sisters of Charity (1964) 53 DLR (2d) 65
* Consent given by a patient while under sedation was not consent

Question 5

Consent elements

Answer 5

Consent must cover the procedure to be performed.
* If you ask to take a blood pressure, you can’t insert a cannula!
* If a doctor gets consent for a Caesarean Section, he/she cannot take out
fibroids that he may find while the patient is under anaesthesia
Murray v McMurchy (1949)
* Surgeon sterilised a woman who had agreed only to a Caesarean delivery

Question 6

Consent must be “informed

Answer 6

sufficient information must be provided
* The practitioner must warn the patient of “material and significant risks” associated
with the procedure
* Rogers v Whitaker (1992) 175 CLR 470
* Wallace v Kam (2013) HCA 19
Patient must understand the information given
* NESB - Biggs v George [2016] NSWCA 113
* Complicated medical language
* Lack of capacity
* Not health literate
* Under influence of medication

Question 7

legal capacity

Answer 7

Patient must have “legal capacity”
Adult of sound mind is said to have ‘capacity’ or to be legally ‘competent’
Adult >18
* Age of Majority Act 1977 Vic
Sound mind ?
* Mental Health and Wellbeing Act 2022 (Vic)
* Guardianship and Administration Act 2019 (Vic)

Question 8

“legal capacity”

Answer 8

Patient must have “legal capacity”
<18 years
* Child may be able to give consent for minor first aid
* Gillick Competency – capacity to understand the nature of the Tx
* Marion’s Case

Question 9

Exceptions

Answer 9

Emergency treatment
* Marshall v Curry 1933
Parental authority is not absolute
* Blood transfusion for a child
Necessity (not in a clinical environment)
* If you need to touch a patient to prevent them from further harm * for example, pushing them away from a moving vehicle, catch them if they are falling,
commencing CPR,

Question 10

What happens if a person is not able to consent?

Answer 10

A competent person can appoint a substitute decision maker under the
Medical Treatment Planning and Decisions Act 2016 (Vic) - Before they
lose capacity to do so
* Power of Attorney (Medical) appointed before 12/3/2018
* A person can be appointed under the Guardianship and Administration Act
2019 (Vic) if the person has a disability that creates incapacity
* A person can be appointed under the Mental Health and Wellbeing Act
2022 (Vic) for a patient under this Act.

Question 11

Substitute decision makers Enduring Power of Attorney (Medical)

Answer 11

• Formal requirement to appoint Enduring Power of Attorney (Medical)
• Allows an attorney to give and withhold consent to medical treatment
  decisions.
• Patient must have decision making capacity.
• Patient should choose someone they trust who respects their values and
  preferences.
• Patient can appoint more than one person, but only one person can act at
  any one time.
• Many people still have an Enduring Power of Attorney (Medical) appointed.

Question 12

Substitute decision makers Medical Treatment Decision Maker

Answer 12

Medical Treatment Planning and Decisions Act 2016 (Vic)
The main purposes of this Act are—
a) to provide for a person to execute in advance a directive that gives
binding instructions or expresses the person’s preferences and values in
relation to the person’s future medical treatment;
b) to provide for the making of medical treatment decisions on behalf of
persons who do not have decision-making capacity

Question 13

Role of Medical Treatment Decision Maker

Answer 13

Medical Treatment Planning and Decisions Act 2016 (Vic)
This person is the person the health practitioner goes to when the patient is
unable to consent
Medical Treatment Decision Maker must make the decision that they
reasonably believe is the decision that the patient would make if they had
decision making capacity.
The Medical Treatment Decision Maker cannot override a decision that the
patient had already made relating to having or refusing to have treatment

Question 14

Who is a person’s Medical Treatment Decision Maker?

Answer 14

An adult appointed by the patient**
2) A guardian appointed under the Guardianship and Administration Act
2019 **
3) The first of the following persons who is in a close and continuing
relationship with the person
1) the spouse or domestic partner of the person;
2) the primary carer of the person;
3) the first of the following and, if more than one person fits the
description, the oldest of those persons—
1) an adult child of the person;
2) a parent of the person;
3) an adult sibling of the person. **
** If the appointee is reasonably available and willing and able to make the
medical treatment decision

Question 15

Medical Treatment Decision Maker

Answer 15

Mental Health and Wellbeing Act 2022 (Vic) Part 3.2
Presumption that a person has capacity to give informed consent
If a patient :
* does not have capacity to give consent or
* has the capacity to give consent by does not give it (and the treatment
proposed is not ECT),
the authorised psychiatrist may make a treatment decision for the patient if
they are satisfied that there is no less restrictive way for the patient to be
treated.

Question 16

Impaired decision making

Answer 16

Guardianship and Administration Act 2019 (Vic)
* What happens if your patient has intellectual impairment?
* Is not capable of understanding treatment?
* Is there a difference between invasive and non-invasive treatment?
* May be able to understand the taking of blood pressure or medication, but
may not be able to understand invasive treatment

Question 17

Impaired decision making

Answer 17

Guardianship and Administration Act 2019 (Vic)
Primary object of the Act is to to protect and promote the human rights and
dignity of persons with a disability.
Disability in relation to a person, means neurological impairment, intellectual
impairment, mental disorder, brain injury, physical disability or dementia;
Guardian means a person appointed in a guardianship order as a guardian in
relation to one or more specified personal matters

Question 18

What happens in an emergency if patient cant consent.

Answer 18

Doctrine of emergency –
* unconscious patients
*Emergency is:
* save the person’s life
* prevent serious damage to the person’s health or
* prevent the person from suffering or continuing to suffer significant pain
or distress.

Question 19

Palliative care

Answer 19

HCP can administer palliative care to a patient who does not have decision
making capacity for that care, despite any decision of their medical
treatment decision maker

Question 20

Temporary change to decision making capacity

Answer 20

If the patient is likely to recover decision-making capacity for the medical
treatment decision within a reasonable time, the health practitioner should wait
for the patient to be able to make the decision, unless a further delay would
result in a significant deterioration of the patient’s condition
EG? Drug affected

Question 21

Medical Research

Answer 21

Section 81 certificate under the Medical Treatment Planning and Decisions Act
2016 (Vic)
If the patient is likely to recover decision-making capacity within a reasonable
time to make a medical treatment decision in relation to a medical research
procedure, a medical research procedure must not be administered without
obtaining the patient’s consent.

Question 22

Medical Research

Answer 22

Section 81 certificate under the Medical Treatment Planning and Decisions Act
2016 (Vic)
Reasonable time
* the medical or physical condition of the person
* the stage of medical treatment or care
* other circumstances specific to the person.
Must record on the patient’s clinical records that:
* the person did not have decision-making capacity
* the person was not likely to recover decision-making capacity within a
reasonable time and
* the reasons for being so satisfied.

Question 23

Failure to obtain consent

Answer 23

Everyone has the right to determine what is done to their body.
If no consent to touch someone - could lead to legal action:
Trespass
* Assault
* Battery
* False imprisonment

Question 24

If no consent, assault and battery

Answer 24

Failure to obtain consent could leave you open to action in assault and/or
battery
Assault is acting with specific intent to cause harm
* You do not need to touch someone to be accused of assault. An action
that creates a fear that you may act is enough
Battery is acting on the intent
* Actual touching or striking another person without their permission

Question 25

What is assault

Answer 25

• Threatening to hit a patient
• Pretending to hit someone
• Telling a patient that you are going to restrain them in bed if they get out
  again

Question 26

What is battery

Answer 26

• Pushing/slapping someone
• Grabbing a patient’s arm to take their pulse
• Touching a person’s hair, clothing or bed
• Giving an injection that the patient refuses to have
• Forcing a patient to get out of bed could be considered to be both assault
  and battery.

Question 27

false imprisonment

Answer 27

s defined as unlawful, intentional and complete
application of restraint upon a person which restricts their freedom to move
* No physical contact needed – patient may fear harm if they remain
* Restriction must be total – there must be no means by which patient can
leave
* Patient need not know at the time that they have been detained (Hart v
Herron)
By law, a person cannot be restrained against their will unless they have been
charged/convicted of a crime

Question 28

What is False Imprisonment

Answer 28

Application of wheelchair brakes to stop a patient moving from one place
to another
* IV therapy and machinery if only to keep a patient in bed
* A table in front of a chair to keep a patient from wandering
* Administration of drugs to control patient’s freedom eg sedatives and
tranquilisers used out of therapeutic guidelines

Question 29

When can you restrain a patient?

Answer 29

Hospital guidelines and policy
* Specific guidelines on ordering restraints
* Reviewing of that order
* And managing that patient while restrained