Consent Issues in Acute Care

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CONSENT ISSUES IN ACUTE

CARE

EHI1

Nerys Brick

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Learning outcomes

Discuss the definitions outlined in the Mental

Capacity Act.

Appreciate the context of consent and National

Guidelines. Define consent

Discuss why informed consent should be sought

Discuss the legal aspects of consent Introduce the scenarios to work through and

come back with and discuss.

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Mental Capacity Act 2005the key

terms: Mental Capacityonly if an adult (over the age of

18) lack capacity can actions be taken or decisions

made on his or her behalf (defined on the next slide).

Best interestsif decisions are to be made or actiontaken on behalf of the mentally incapacitated adult,

then they must be made or taken in the best

interests of that person.

Duty of Care - an individual may owe a duty of care

to another, to ensure that they do not suffer any

unreasonable harm or loss.

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Basic Principals of the MCA

A person must be assumed to have capacity unless it is established that he

lacks capacity.

A person is not to be treated as unable to make a decision unless all

practicable steps to help him to do so have been taken without success. .

A person is not to be treated as unable to make a decision merely becausehe makes an unwise decision. .

An act done, or decision made, under this Act for or on behalf of a person

who lacks capacity must be done, or made, in his best interests. .

Before the act is done, or the decision is made, regard must be had to

whether the purpose for which it is needed can be as effectively achievedin a way that is less restrictive of the person's rights and freedom of

action.

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Terms continued..

Advance decisions to refuse treatmentthis is also

known as living wills or advance refusals/directives;

these are given statutory recognition, and special

requirements are specified if these advance decisionsare to cover the withdrawal or withholding of life-

sustaining treatment.

Research on mentally incapacitated adultsthis

must be subject to specific qualifications and unless

these are complied with, the research cannot

proceed.

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Power of Attorneythe act enables the

person when mentally capacitated to appoint

a person known as the DONEE to make

decisions about the persons personal welfare,

property and affairs at a later time when that

person lacks mental capacity.

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National guidelines

NHS Plan identifies need for changes in the way inwhich patients are asked to give their consent totreatment, care or research

Importance of patient focused consent proceduresalso emerged as a key theme in the Bristol RoyalInfirmary Inquiry Report

Consistent approach is required across all NHSorganisations

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Key DoH documents

DoH (2001) Reference guide to consent for

examination or treatment. London: DoH.

DoH (2001) Good practice in consent: achieving the

NHS Plan commitment to patient-centred consentpractice. London DoH

DoH (2001) 12 key points on consent: the law in

England. London: DoH.

DoH (2005) The Mental Capacity Act. London: DoH

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Defining consent

"the principle that a person must give theirpermission before they receive any type ofmedical treatment. Consent is required from a

patient regardless of the type of treatment beingundertaken, from a blood test to an organdonation

Dimond (2008).

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Patients are not obliged to undergo treatment merely

because a healthcare professional feels it appropriate.

Individuals retain the right to choose whether or not to

have their bodily integrity interfered with, or damaged by

others.

Failure to gain consent is regarded in law as Trespass

against the person. If a patient is touched by the healthcare professional

without consent, this constitutes a crime of battery in

English law and assault in Scottish law (Mason & Laurie,

2010). All healthcare professionals have a responsibility to

ensure that they gain consent before proceeding with

any care or treatment.

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How do you test for capacity?

Does the patient understand the information?

Can the patient retain the information?

Can the patient weigh in the balance the risks

& benefits

Can the patient communicate consent orrefusal?

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Assault and Battery

Assault: is an intentional act by one person that creates

an apprehension in another of an imminent harmful or

offensive contact.

Battery: The elements of battery are (1) a volitional act(2) done for the purpose of causing a harmful or

offensive contact with another person or under

circumstances that make such contact substantially

certain to occur and (3) which causes such contact.

Thus throwing a rock at someone for the purpose of

hitting him is a battery, if the rock in fact strikes the

person and is an assault if the rock misses.

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Types of consent

Implied

Expressed

Verbal

Non-verbal

Written

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Implied consent

Implied consent is when consent is

implied by the co-operation and

voluntary actions of the patient Implied consent is appropriate when

no harm is likely to result from the

care given and the patient is notexpressing any reservations

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And what of the unconscious

patient? Implied consent may also be assumed in the case of an

unconscious patient admitted to an emergency department.

It would normally be assumed by an advanced practitioner

that the patient would consent to the use of life saving

measures in an emergency.

If the patient subsequently challenged any action undertaken

by the advanced practitioner in good faith, the necessity of

the act to resolve the emergency would offer a defence to any

action against them.

However, interventions undertaken by an advanced

practitioner while the patient is unconscious must be

demonstrated as necessary not merely convenient for the

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Express consent

Express consent (verbal, non-verbal or

written) should be obtained for any

procedure that carries a material risk Express written consent (a signed consent

form) is evidencethat the patient has given

consent, but is notproofof valid consent

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Valid consent

For consent to be legally valid:

Person must have sufficient information

to make a decision (informed)

Consent must be freely given, not under

duress

Person must have the capacity tounderstand

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Who can consent

Adults with capacity

The Courts

Young people age 16 to 17

Children under 16

See Fraser (Gillick) competence

http://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.html

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http://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.htmlhttp://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.htmlhttp://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.htmlhttp://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.html


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Adults without capacity

No adult may consent on behalf of anotheradult

. . . but seeking the agreement of a relative is

good clinical practice The best interests of the patient are

paramount

On rare occasions a court order is necessary -e.g. for sterilisation

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Right to refuse care/treatment

A competent adult has the right to refuse

care or treatment, even if others, including

health carers, believe that the refusal is not

his or her best interests

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Treatment without consent

A patient sectioned under the MentalHealth Act 1983 may be treated withouttheir consent (for their mental illness)

Children can also be treated without theirconsent if their refusal may result in harm

Emergency treatment can be given without

consent (e.g., a nurse performing BLS)

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Consent & human rights

Patients must not be treated in circumstances

that may be considered degrading

E.g. use of force

Howevernot to treat may be considered

negligent

Advice from senior staff & MDT

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Consent Issues in Acute Care

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