Consent by chenshu


									Consent and Capacity

Sarah Manning
Issues to Consider
• When is consent necessary?
• How much information must the patient be
• 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
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
• 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
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
   – 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
• 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
• 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
• Must consider:
   – Past and present wishes (in particular any
      written statement made when the patient had
   – 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
• 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

• 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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