Consent Flashcards
Key principle of medical law - informed consent
Touching patients without their consent is unlawful – assault which is a battery
Why is consent a good thing
Depontological justification - one is justified in holding the belief if and only if one is in the clear or epistemically responsible in holding the belief.
Consequentialist justification – state is justified by the good result it imposes
Four criteria for valid consent
Four criteria for valid consent
Patients must have capacity
Patient must give consent involuntarily
Patient must be informed
Consent must be continuing
What form must consent take ?
Written conset
Fertility treatment
Good practice in surgery
Assumed consent
Conduct
Seeking and complying with treatment
Verbal consent
Two approaches to capacity
Status and function
The law uses a comination
Adult terms of capacity in act 2000
Understand info
Retain info
Use or weigh the info
Communicate their decision
Hold decision consistently
Adult terms of incapaciy is when a person is incapable in
Acting
Making decisions
Communicating decisions
Understanding decisions
Retaining the memory of decisions
From the mental capacity act in eng;land and wales but same in Scotland
A person is assumed to have capacity unless its established otherwise
A person is not to be treated as if they lack capacity to make a decision unless all steps have bee taken to help them in the decision making process
A person is not to be treated as unable to make a decision just because the decision is unwise
A decision made on behalf of a person who lacks capacity must be In that persons best interest
Why might someone lack mental capacity?
Impairment of the functioning of the brain which can be temporary or permanent
What makes assessing difficult?
- It’s not a once and for all judgement
- Non-cooperation
- Just because the decision is irrational or bizarre, does not mean patient lacks capacity
- Underlying conditions may cloud your judgment (and may or may not affect patient’s capacity)
- Communication problems
Proxy-decision makers
- Lasting power of attorney (LPA)
- Advance directives
- Best interests test (HCP, relatives, carers)
- Note: proxies have their problems:
– Proxy and patient do not always agree (~68%
accurate)
– Proxy decisions are normally subject to “best interests” … not so our own decisions
The problem of children
• When should a child be considered old enough to
consent to medical treatment?
- Consent of 1 parent enough for most procedures
- If disagreement, Court can:
– Authorise
– Overrule
– Not compel
• Should children (& adults lacking capacity), be
allowed to participate in research?
Gillick competence
- 1986: Landmark case
- Victoria Gillick & her children
- Centred around contraceptive advice to under-
16s without parental consent
• “Gillick-competent” child – respect for mature
minor’s autonomy (see - Fraser Guidelines)
Fraser guidelines
• that the girl (although under the age of 16 years of age) will
understand his advice;
- that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;
- that she is very likely to continue having sexual intercourse with or without contraceptive treatment;
- that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
- that her best interests require him to give her contraceptive
advice, treatment or both without the parental consent.”
What is the test of gillick competency?
“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.”
