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Consultant in A&E Medicine
Northumbria Healthcare NHS Trust
              What is consent?
   Informed consent
   True consent
       Implied consent
       Express Consent
   …the voluntary and continuing permission
    of a patient to receive a particular
    treatment, based on an adequate
    knowledge of the purpose, nature, likely
    effects and risks of that treatment,
    including the likelihood of its success and
    any alternatives to it.
   Permission given under any unfair or
    undue pressure is not a true consent
              Obtaining Consent
   Consent is valid only if…
       The patient is legally competent
       The consent is given freely
       It is informed…
          The intention
          The nature       of what is intended is explained
          The purpose

       It is appropriate
                 Disclosure of Risk
   Risks should be disclosed if…
       They are material (a reasonable patient or
        doctor would attach significance to them)
       The incidence of the risk is high
            ? <1% cut-off
       The incidence is low but the risk is potentially
       The patient specifically asks
   Therapeutic privilege
              Limits of Consent
   Consent does not validate criminal or
    unethical treatments
       Euthanasia
       Maiming (gender reassignment surgery)
       Non-therapeutic sterilisation
       Cosmetic procedures
       Experimental or unorthodox procedures
              Consent and the
             Unconscious Patient
   The doctrine of “best interest”
   Treatment is justified if
       It saves life
       It prevents further deterioration
       It improves health
       It is in accordance with established medical
       The patient was competent and did not refuse
        treatment prior to losing consciousness
   All adults are assumed to have capacity
   Exceptions
       Minors
          16-18 yrs
          <16 yrs

       Physical illness
       Mental illness
       External influence
          Consent and Minors

   Family Law Reform Act 1969

   Gillick v West Norfolk and Wisbech Area
    Health Authority

   Children Act 1989

   Parental responsibility
                             Consent in Children
                             Y           Emergency or
            Treat                   life-saving procedure?
                                 Is the child a ward of Court?            Apply to the
                                                  N                        High Court
                                       How old is the child?
                       16-18                                          <16

            Competent?                                                    Competent?
        Y                N                                                       N
 Gives consent?                                  Gives Consent?             1 parent consents
   Y           N                   N                    Y                                   N
Treat       Treat if 1 parent consents        Treat with                          Apply to the
            and/or apply to High Court      child’s consent                        High Court

                                                       Treat or apply to High Court for
                                                          non-therapeutic treatment
        Special Circumstances
   Jehovah’s Witnesses
   Prisoners
   Intimate samples
   Screening
   Clinical trials
   Post-mortem and removal of human tissue
   Dead patients
   Surgical implants
             Assessing Capacity
   A patient is deemed competent if he/she
    can be shown to…
       Comprehend and retain information that has
        been presented in a way they can understand
       Believe the information
       Be able to weigh up the information and use
        it to make an informed decision
             Assessing Capacity
   Capacity may fluctuate
   Refusal to consent requires a higher
    degree of capacity than agreement to
   Capacity may be compromised by…
       Stress
       Pain
       Alcohol and drugs
       Co-existing illness
              Refusing Consent
   A competent patient has the right to
    refuse treatment even if this may result in
       Advanced decisions
       Pregnancy
       Competent minors
       Undue influence
    Situations where consent is not required
   Examination of immigrants at a port/airport of entry
    to the UK
   Examination of a patient suffering from a notifiable
    disease (Magistrate’s order)
   Psychiatric examination/treatment under Mental
    Health Act 1983 s. 2,3,35,36
   Routine external medical examination of new
    prisoners to exclude infectious disease
   Examination of dairymen & food handlers in
    outbreak of staphylococcus/salmonella
   Routine external medical examination of members
    of HM Forces
        Mental Capacity Act 2005
   Impact as yet unknown
   The Act formalises common law into
    statute law
   Was originally entitled the
       Mental Incapacity Bill
   The introduction of Healthcare Proxies is a
    major revolutionary change
             MCA 2005 Definitions
   “D”
       Person making a decision on behalf of a person
        lacking capacity
   “P”
       Person who lacks capacity, or (in some contexts)
        is thought to lack capacity
   DCOP
       Draft Code of Practice to the Mental Capacity Act
        2005 published by the DCA 2004
   LPOA
       Lasting Power of Attorney (MCA ’05 ss 9-14)
              Historical Background
   Parens patriae
       14th Century-Royal Prerogative Power
            Chancery courts
   1957 Percy Commission
       Statutory footing of parens patriae
            Mental Health Act 1959
                 Court of Protection (property & affairs)
            Mental Health Act 1983
                 Part VII

   Enduring Powers of Attorney Act 1985
       Estate matters only
    Development of Common Law
   F v West Berkshire HA sub nom re F (Mental
    Patient: Sterilisation) [1990] 2 AC 1
   Adult female lacking capacity and requiring
   Who can give consent?
   House of Lords
       Doctrine of necessity
   Airedale NHS Trust v Bland [1993] AC 789
       Again applied Doctrine of necessity
        Law Commission Proposals
   A series of Law Commission discussion documents
       1989-1993
   Green paper
       1997
   White Paper
       1999
   Draft Mental Incapacity Bill (2003-2004)
   Mental Capacity Act 2005 passed just prior to May
    ’05 election
             Why a 10 year gestation?
   Advanced decisions
       Was this euthanasia by the back door?
       PM assurances that law relating to murder, manslaughter
        and assisted suicide remains unchanged
            (See s 62)
   Medical research
   Hague Convention on the International Protection of
    Adults (2000)
       Sch. 3 of MCA
   Human Rights Act 1998
   Common law developments
       Best interests definition broadened
        Mental Capacity Act 2005
   Royal Assent 17th April 2005
   Enforced by 2007
   3 parts
       1-persons who lack capacity
       2-the Court of Protection
       3-miscellaneous & general
   7 schedules
       Sch. 5 repeals EPAA 1985 and Part VII of
        MHA 1983 (property and affairs of patients)
      Interpretation of Capacity (s1)
   s2 A person must be assumed to have capacity unless it is
    established that he lacks capacity
   s3 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
   s4 A person is not to be treated as unable to make a
    decision merely because he makes an unwise decision
   s5 An act done, or a decision made, under this Act for or on
    behalf of a person who lacks capacity must be done, or made,
    in his best interests
   s6 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 effectively achieved in a way that is less restrictive of
    the person’s rights and freedom of action
                   Best Interests
   Decisions made under the Act must be in P’s
    best interests
   This only applies when P lacks capacity
   If P has capacity then his decision is his own
       “Mad and bad decisions” do not necessarily mean that
        P lacks capacity
   P may regain capacity
   Consider P’s wishes, feelings, values and beliefs
   Involve P in the decision making bearing in mind
    the lack of capacity
   The Act deals with persons aged 16 and over
   The Children Act 1989 deals with persons under
       An LPOA can only be signed by a person aged over
        18 (s 9(2) (c))
       The Court can deal with the property of a person
        under 16 if it is likely that that person will still lack
        capacity over the age of 18 (s 18(s))
       Ill-treatment or wilful neglect of a person lacking
        capacity has no age limit (s 44)
     Deciding that P lacks capacity
   1…be able to comprehend the information
    relevant to the decision
       …the relevant information must be presented to
        P in a way appropriate to his circumstances
   2…P must be able to retain this information
    for long enough to make a decision
   3…P must be able to use and weigh this
    information to arrive at a decision
   4…P must be given the opportunity to
    communicate appropriately his decision
If P fails on any of these tests,
        he lacks capacity
        Lasting Power of Attorney
   This replaces EPA under EPAA 1985
   An LPA may make decisions regarding P’s
    personal welfare as well as his property
    and affairs (s 9)
       LPA must be over 18 and have capacity
       LPA must not be a registered bankrupt
       Court Appointed Deputy
   Similar rules and roles as LPA
   Appointed when P lacks capacity (to
    appoint D)
Advanced Decisions (ss 24-26)
   The Act codifies the right to make ADs to
    refuse medical treatment
   These have the same power as a
    competent patient making the decision
   Best interests or substituted decision
    making are overruled
                 Possible Conflict?
   Adults with Incapacity (Scotland) Act 2000
       Similar (but not the same as) MCA 2005
       Public Guardian
       Court of Session / Sheriff's Court
       Continuing Powers of Attorney
Any Questions?
   Patients have capacity unless proven
   4 steps to proving incapacity
   Children are different
   When in doubt go to law

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