CONSENT ISSUES IN ACUTE CARE

EHI1 Nerys Brick

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 2005 the key terms:

Mental Capacity only 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 interests if decisions are to be made or action taken 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 because he 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 achieved in a way that is less restrictive of the person's rights and freedom of action.

What is in the patient's best interest?

Do not make unjustified assumptions; Consider all the relevant circumstances; Consider whether capacity is likely to be recovered; Support the patients ability to participate; In life-saving treatment, a desire to bring about death should not be the motivation; Consider the patients wishes and feelings, beliefs and values and other factors the patient would consider; Consult the views of specified others about what is in the patients best interest and any of the above.
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Terms continued..
Advance decisions to refuse treatment this is also known as living wills or advance refusals/directives; these are given statutory recognition, and special requirements are specified if these advance decisions are to cover the withdrawal or withholding of lifesustaining treatment. Research on mentally incapacitated adults this must be subject to specific qualifications and unless these are complied with, the research cannot proceed.
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 Power of Attorney the 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.

National guidelines
NHS Plan identifies need for changes in the way in which patients are asked to give their consent to treatment, care or research Importance of patient focused consent procedures also emerged as a key theme in the Bristol Royal Infirmary Inquiry Report Consistent approach is required across all NHS organisations

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 consent practice. London DoH DoH (2001) 12 key points on consent: the law in England. London: DoH. DoH (2005) The Mental Capacity Act. London: DoH

Defining consent
"the principle that a person must give their permission before they receive any type of medical treatment. Consent is required from a patient regardless of the type of treatment being undertaken, from a blood test to an organ donation 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 or refusal?

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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 not expressing 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 professional 16

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 evidence that the patient has given consent, but is not proof of 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 to understand
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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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Adults without capacity

No adult may consent on behalf of another adult . . . 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 Mental Health Act 1983 may be treated without their consent (for their mental illness) Children can also be treated without their consent 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 However not to treat may be considered negligent Advice from senior staff & MDT

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References
Cable, S et al (2003) Informed consent, Nursing Standard . 18 (12), 47-53. Caulfield, H. (2002) Legal issues. In: Kenworthy, N., Snowley, G. and Gilling, C. (eds) Common Foundation Studies in Nursing. London: Churchill Livingstone. Dimond, B (2004) Legal aspects of nursing. (4th ed) London: Pearson Longman. Dimond, B. (2008) Legal Aspects of Mental Capacity. Blackwell Publishing: Oxford. Oxtoby, K (2005) Consent: obtaining permission to care, Nursing Times. 101 (1), 23-24.
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