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Consent and Capacity Sarah Manning Issues to Consider • When is consent necessary? • How much information must the patient be given? • Recording consent • How do you assess whether a patient is competent to consent? • What treatment can be given to a patient who cannot consent („‟best interests‟‟)? • Advance Decisions • Children and consent Basic Principles • Consent is necessary every time a competent patient is examined or treated • Every adult is assumed competent unless it is demonstrated otherwise • Consent can be verbal, written, or implied • A competent patient can refuse treatment Basic Principles A valid consent to treatment is:- • Given by a competent person • Given voluntarily • Given after sufficient information about the treatment How much information should be given? • Sufficient information to consider both the benefits and the risks of the treatment: – Purpose of the examination/treatment – Possible complications or side effects – Alternative options, including the option not to treat • Record that the information has been provided How much information has to be given to a patient? Sidaway v Bethlem Royal Hospital and Others: • 1-2% risk of damage to nerve root or spinal cord • The question whether refraining from warning of risks constitutes a breach of the duty of care is to be determined by application of the Bolam test • Failure to warn of risk of damage to the spinal cord was „‟Bolam reasonable‟‟ BMA Guidance: The amount of information will vary according to factors such as: • The nature and severity of the condition • Complexity of the treatment • Risks of the procedure • The patient‟s own wishes GMC guidance • The purpose of the investigation or treatment • Options – including the option not to treat • Known possible side effects • A reminder that the patient can change his or her mind • Raise with the patient the possibility of additional problems coming to light during the procedure Some other factors • Timing • The circumstances of individual patient • Emergency situations • Who should consent the patient Consent and the Medical Records • Good records are essential in responding to complaints and claims • Essential part of a clinical negligence claim • ‘’You may have done nothing wrong, but unless the medical records prove this, it can be difficult to defend a claim. Courts have a tendency to believe the memory of a patient, for whom it is a once in a life time experience, rather than the memory of a doctor, recalling many years later one of many similar procedures’’ Medical Protection Society Capacity to Consent • Test for capacity applies to both: – Capacity to consent to treatment – Capacity to consent to (or refuse) disclosure of confidential information • Remember the presumption of capacity The Test for Capacity • Common law test (Re C) to be codified in the Mental Capacity Act 2005 • Is the patient able to – Understand, in simple language, what treatment is proposed? – Understand the likely benefits and risks of the treatment (and the consequences of not treating)? – Retain information for long enough to weigh it in the balance and arrive at a decision? The test for Capacity in Practice: • Re MB (1997) • Refusal of caesarean section due to needle phobia • Fear of needles such that „‟at the moment of panic, her fear dominated all‟‟ • At that moment she was incapable of making a decision at all and was temporarily incompetent Capacity in Practice • Re T (1992) • Jehovah‟s Witness refusing blood transfusion • Twice refused transfusion following an RTA when she was 34 weeks pregnant • Refusal after spending time alone with mother. Father and boyfriend challenged the validity of the refusal. • Patient‟s refusal invalid because of effect of her condition, some misinformation, and her mother‟s influence Capacity in Practice • Re B (2002) • Competent patient entitled to refuse artificial ventilation • Following haemorrhage of spinal column patient tetraplegic and placed on a ventilator. • Patient requested withdrawal of ventilation notwithstanding clear advice she would die • Psychiatric assessment that patient had capacity, but despite this treatment continued • Court held the treatment was unlawful Adults who lack Capacity • Doctors may treat, without consent, provided the treatment is “necessary‟‟ and “in the patients best interests” • Best interests are not limited to medical interests (Re MB) • Use of reasonable force (Re MB) Assessing Best Interests: Section 4 MCA 2005 • Is it likely the person will have capacity in the future? • Must consider: – Past and present wishes (in particular any written statement made when the patient had capacity) – The beliefs and opinions likely to influence his decision if he had capacity – Other factors he would be likely to consider if he had capacity Best interests: Who can you consult? • Nobody can consent/refuse on behalf of an incompetent adult (but see Lasting Powers of Attorney) • But, you must take into account, if practical: – Anyone named by the patient as a person to be consulted – Anyone engaged in caring for the patient – Anyone with a lasting power of attorney (once that legislation is in force) Assessing Best Interests • Note the Draft Code of Practice issued under MCA 2005 Lasting Powers of Attorney • When in force, the Mental Capacity Act 2005 will introduce „‟Lasting Powers of Attorney‟‟ • LPA can authorise donee to make decisions about a patients welfare • Must be made while donor (patient) has capacity • Can include refusal or consent to treatment, provided express provision is made to that effect • Only applies where donee no longer has capacity Advance Decisions • Note the rules to be introduced in the Mental Capacity Act s24-26 • Rules for validity: – Over 18 with capacity – Not withdrawn – No subsequent Lasting Power of Attorney – No other „‟clearly inconsistent‟‟ act • Can seek a declaration from the Court over existence/validity of Advance Decision Children and Young People • Presumption of competence at age 16 • Under 16 you have to consider the child‟s competence (see the test above) • If child is incompetent, a person with parental responsibility can consent Competent children and consent • Generally, a competent child: – Can consent to treatment – Can refuse disclosure of confidential information to a third party (including a parent), eg Gillick Competent Children and Refusal of Treatment • Logically, a competent child ought to be able to refuse treatment • Note the position where a competent child refuses life saving treatment • In practice the Courts have been prepared to rely upon parental consent, or order treatment against the child‟s wishes (eg Re M – heart transplant case) • Always seek legal advice before treating against a competent child‟s wishes Case Study • In the early hours a 15 year old girl, whilst intoxicated falls off a climbing frame and lands on her head. She is knocked unconscious and placed in the recovery position by her friends, who also call an ambulance. By the time the paramedics arrive, she has regained consciousness. She is abusive and un- cooperative and refuses to travel. Questions ?
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