Consent Issues in Acute Care
Transcript of Consent Issues in Acute Care
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CONSENT ISSUES IN ACUTE
CARE
EHI1
Nerys Brick
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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 2005the key
terms: Mental Capacityonly 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 interestsif decisions are to be made or actiontaken 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 becausehe 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 achievedin a way that is less restrictive of the person's rights and freedom of
action.
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Terms continued..
Advance decisions to refuse treatmentthis is also
known as living wills or advance refusals/directives;
these are given statutory recognition, and special
requirements are specified if these advance decisionsare to cover the withdrawal or withholding of life-
sustaining treatment.
Research on mentally incapacitated adultsthis
must be subject to specific qualifications and unless
these are complied with, the research cannot
proceed.
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Power of Attorneythe 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.
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National guidelines
NHS Plan identifies need for changes in the way inwhich patients are asked to give their consent totreatment, care or research
Importance of patient focused consent proceduresalso emerged as a key theme in the Bristol RoyalInfirmary Inquiry Report
Consistent approach is required across all NHSorganisations
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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 consentpractice. London DoH
DoH (2001) 12 key points on consent: the law in
England. London: DoH.
DoH (2005) The Mental Capacity Act. London: DoH
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Defining consent
"the principle that a person must give theirpermission before they receive any type ofmedical treatment. Consent is required from a
patient regardless of the type of treatment beingundertaken, from a blood test to an organdonation
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 orrefusal?
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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 notexpressing 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
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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 evidencethat the patient has given
consent, but is notproofof 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 tounderstand
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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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http://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.htmlhttp://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.htmlhttp://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.htmlhttp://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.html -
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Adults without capacity
No adult may consent on behalf of anotheradult
. . . 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 MentalHealth Act 1983 may be treated withouttheir consent (for their mental illness)
Children can also be treated without theirconsent 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
Howevernot to treat may be considered
negligent
Advice from senior staff & MDT
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