Consent and the tort of trespass to the person by ffq12461

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									Consent and the tort of trespass to the
person



Dawn
Gawthorpe
2010


              Shape your own future
The aim of this presentation is to outline briefly the
  legal and ethical issues surrounding consent in
  relation to your to research projects so that you
  may understand the importance of the
  participant information sheet and consent form ( if
  included ) the requirements to make the consent
  you gain valid
             Trespass to the person

Legally there are three forms of trespass: assault, battery and
  false imprisonment
Defences to an action for trespass to the person include :
Consent
Necessity, Making a lawful arrest, Action under a statutory
  power,e.g Mental Health Act(1983), Parental power
Gaining some form of consent from your participants is
  therefore important next we have to consider how we do
  that
                Forms of consent
• Informed consent can be written,oral or given by
  implication (Department of Health 2009)

• Consent is expressively given by patients/persons when
  they sign what has become known as a consent form

Not all projects require a consent form it depends on the
  nature of the project and this should be discussed with
  your supervisor. If you do need a consent form it should
  include the date time and signature of the participant. It
  should also refer to the information sheet that the
  participant has been given to read
• Implied consent may not only be expressively
  given but may be implied from the patients/
  person’s conduct Sidaway v Bethlam Hospital
  Royal Hospital Governors[1985]1ALL ER 643
• So for example someone rolling up their sleeve and offering a nurse
  their arm to do their blood pressure, however, a word of caution the
  person may not understand what they are doing so does this make it
  consent?
• Implied consent in projects is seen when participants return
  questionairres, we do not need to ask them to sign a consent form
  as well, their actions imply consent
• Equally we can presume participants have given their consent if they
  turn up for an interview however it is good practice to get them to
  sign a consent form because of the nature of the questions to be
  posed
   What is needed for a valid consent?
• Made by a person with capacity, the Mental Capacity Act
  (2005) sets out the legal requirements
• Real based on adequate information
• Agreement
• Informed consent: voluntary, without duress or fraud
• The participant has to be made aware of the benefits
  and risks as well as any alternatives and options
• There has to be time for questions, reassurance, change
  of mind we usually give 24 hours for people to respond
• Be aware that absence of dissent does not equate to
  consent
             Ethical Consent
• Informed consent is defined by Beauchamp and
   Childress (2009) as comprising two elements
 1.Information elements- disclosure and
   comprehension of information
  2. Consent elements- voluntary and competent to
   consent
This enables the person/patient to make an
   autonomous choice and for the researcher to
   respect the participants autonomy
                                  Refusal
• Re T(Adult: Refusal of Treatment)[1992]4ALL ER 649,
• Lord Donaldson,MR stated ‘As I pointed out at the beginning of this
  judgement,the patients right of choice exists whether the reasons for
  making the choice are rational or irrational,unknown or even non
  existent.That his choice is contrary to what is to be expected of the vast
  majority of adults is only relevant if there are other reasons for doubting his
  capacity to decide.The nature of his course or the terms in which it is
  expressed may then tip the balance….’
• An adult, mentally competent patient has the right to refuse treatment for
  good reason, a bad reason on or for no reason at all. Unless they are
  mentally impaired, suffering from effects of drink/drugs, overbearing views
  of others AND Applies even if this may lead to the patient’s death – Re B
  [2002] 2 All ER 449.

For your participants then they need to be made aware that they have the
  autonomous choice whether to participate in the first place you cannot
  coerce them in any way.
              How much information?
• Broad terms – Chatterton V Gerson [1981] 1 All ER 257
• That which is the practice of the profession to offer- Bolam V Friern
  HMC [1957] 1 WLR 582. Sidaway & Bolitho cases so what is known
  you cannot [predict the unknown
• Chester v Afshar [2004] UKHL 41 Pt2 – entitled to consent with
  understanding even if she may have decided to go ahead with
  surgery.
• Your participants need to understand the aims and outcomes of your
  project and the rationale, you also need to be honest about whether
  or not there will be any future benefit and often the answer might be
  unknown
                    Withdrawal of consent
• Patient’s can withdraw their consent at any time even after it has been given
  To continue treatment would be battery.
• In a Canadian case Ciarlariello v Schater (1993) 100DLR(4th)(SCC)
• ‘If it is found that the consent is effectively withdrawn during the course of
  the procedure then it must be terminated. The question whether a patient is
  capable of withdrawing consent will depend on the circumstances of each
  case…The words used by the patient might be ambiguous. Even if they are
  apparently clear,the circumstances under which they were spoken may
  render them ambiguous’
• For your participants you need to make it clear that they can withdraw from
  the project at any time without prejudice and you need to inform them how
  they can do this in your information letter
               Resources
• DH reference guide 2003 revised 2009 (www.dh.gov.uk)
• Consent: patients and doctors making decisions together
  (GMC, 2008).
• UK Data Archive(2009).Managing and Sharing Data – a
  best guide for researchers.2nd Ed 2009 www.data-
  archive.ac.uk/sharing
• Research Councils UK(2009). RCUK Policy and code of
  Conduct on the Governance of Good Research Conduct-
  Integrity, Clarity and Good Management.
  www.rcuk.ac.uk
• Medical Research Council (2005) MRC Ethics Series –
  Good Research Practice. www.mrc.ac.uk
uk

								
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