consent and capacity Flashcards
Canadian perspectives
determination
–– Right to say no
Right to be involved in
decision-making process
–– Right to confidentiality
More universal
Treat persons as
‘ends-in-themselves’,
not as a means to annot as a means to an
endend
Another definition
Disputes among reasonable
people about what constitutes
right action….
Ethics and Law
Legality and morality are often confused.
But they are not the same, since an action
can be legal without being moral, and vice versa
Laws do reflect morals, however, and are
often thought to be ‘morally codified
How do you balance these
principles?
– Patient self-determination (autonomy)
– Duty to help (‘beneficence’) & try to do
no harm (‘non-maleficence’)
– Fairness (‘justice’)
Consent and Ethics…
Ethically based informed consent goes far
beyond “agreeing to” or the “granting of” permission
It is rather the respectful process of providing
information, answering questions and aligning
the proposed intervention with the values and wishes of the patient.
Ethics, autonomy advocacy
Generally our first duty is to autonomous
choice before health care perceptions of
best interests.
Well established in law
.
Advocacy is first directed to capable patient choice.
Why is consent such a
problem?
Research shows that a significant number of
people in health care do not fully understand the
legal and ethical foundation of consent.
A great deal of confusion exists related to “bestA great interests”.
Many people are receiving poor modelling in
obtaining and respecting consent.
The growing challenge of Consent
Aging population with higher levels of cognitive
impairment.
Increased social/legal awareness.
Never have issues of consent and capacity been
more important
Emerging from Paternalism
Doctor knows best”
Medical facts and choices without values or choice
Poorly aligned with a mature democratic
society
Paternalism and justice
Women greatly disadvantaged.
Minorities greatly disadvantaged.
Little to know variation for diversity and
personal choice
What is capacity?
A person is considered to have capacity with respectto making a treatment decision if he/she:
A) has the ability to understand the information
that is relevant to the treatment decision
B) is able to appreciate the foreseeable
consequences of consenting or refusing treatment
C) is able to reach a decision
Criterion 1:
Understand
As a construct, to ‘understand’ refers to a
person’s cognitive abilities to factually grasp and
retain information.
To the extent that a person must demonstrate
understanding through communication, the
ability to express oneself (verbally or through
symbols or gestures) is also implied
Criterion 2:Appreciate
Can the patient evaluate his/her decision?
The ‘appreciate’ standard attempts to capture
the evaluative nature of capable decision
making, and reflects the attachment of personal
meaning to the facts of a given situation.
Explores both patient’s reasoning process and
personal meaning given to various outcomes
Global Incapacity has no legal
bearing
Many healthcare workers continue to believe in
the concept of global incapacity, that is a patient or client either has or does not have capacity to
make decisions.
Capacity evaluation
Capacity evaluation is the responsibility of the healthcare provider who proposes the treatment
It is evaluated by asking the patient questions related to the treatment decision
It is critical to remain focused on the fact that capacity is decision-specific
The Nature of Capacity
Capacity can be::
1) A matter of degree
2) Can be highly variable
