Consent to Treatment Guidance PDF

Consent to treatment - Arguably underpins 'medical law' - One of the most important concepts Basic starting point A patient must give consent to medical treatment. A patient has the right to refuse treatment even at the cost of their life. - Every adult with sound mind has a right to dete...

Consent to treatment - Arguably underpins 'medical law' - One of the most important concepts Basic starting point A patient must give consent to medical treatment. A patient has the right to refuse treatment even at the cost of their life. - Every adult with sound mind has a right to determine what shall be done with their own body. A surgeon who operates without consent performs an assault. (Cardozo) Ethical considerations - Autonomy v paternalism - Can forcible treatment ever be justified in the patient's best interests, or the interests of others? - Does accepting autonomy come at a cost? - If so is it an acceptable cost? - Treatment without consent may: - Constitute a battery (tortious and criminal act) - Constitute other criminal offences - Be negligent - Breach the patient's rights under the ECHR - Be a breach of DoH guidance, professional obligations and policy requirements. - Consent will not always protect a clinician from a claim. - Consent may be overridden in some circumstances Legal considerations - May be invalid/unobtainable - Treatment may be unlawful -- e.g female circumcision (Female Circumcision Act 1985) - Must be proper medical treatment -- see R v Brown Overall legal framework Common law - Capable consenting adult - Competent consenting child Statutory provisions - Mental capacity act and code of practice to the mental capacity act 2005 - 16/17 year olds family law reform act - Specific consent provisions e.g. human tissue act 2004 - Children act - Mental disorder -- mental health act 83, 2007 Ethical guidelines - GMC Guidance -- guidance on professional standards and ethics for doctor decision making and consent November 2020 - Consent -- supported decision-making a guide to good practice (royal college of surgeons) GMC -- seven principles - 1\. All patients have the right to be involved in decisions about their treatment and care - 2\. Decision making is an ongoing process - 3\. All patients have a right to be listened to and to be given the information they need - 4\. Doctors must try and find out what matters to their patients - 5\. Doctors must start from the presumption that all adult patients have capacity. - 6\. Choice of treatment for patients that lack capacity must be the most beneficial to them. - 7\. Patient whose right to consent is affected by law should be supported to be involved in the decision making process. What is consent? Express Written - Not generally required - See DoH standard consent forms & DoC guidance - Signature on form is not necessarily consent -- evidence procedure was explained to. - Taylor v Shropshire -- sterilised patient. Signing consent form was irrelevant, procedure went beyond the consent form. Oral Implied - O'Brien v Cunard Steamship Co Consenting to what and to whom? - Exactly what has the patient consented to? - Consider an unconscious patient -- how to ensure consent obtained to cover necessary procedures - See DoH standard form. - Is consent limited to a particular doctor? - GMC Guidance - Jones v Royal Devon and Exeter -- succeeded against the trust as she was operated on by a surgeon she was not expecting. At length made claims for a specific surgeon. - Who takes consent? - Treating Dr's responsibility -- gmc guidance Voluntary consent - Must be the patient's own individual decision and not as a result of a third party (Re T 1992) - Re T -- refuses in the presence of her mother. Pressurised from mother -- consent set aside. - Distinction between persuasion and overriding the independent will. - Fraud and consent -- invalid - R v Richardson 1998 -- dentist did not have a license -- did not negate consent. - R v Melin 2019 -- falsely represented they were medically qualified -- consent not fully informed. Information - Chatterton v Gerson -- 'board terms of the nature of the procedure and has given consent, the consent is real' - Informing a competent adult in broad terms of the nature of the procedure will constitute a defence to a battery claim - But -- may expose the doctor to a negligence action, unless the risks and implications are also explained. - Claims for non-disclosure of risks are brought in negligence Montgomery - Doctor under a duty to take reasonable care to ensure that the patient is aware of any material risks involved. - Based on the specific patient themselves. - Doctor should document his dealings with the patient and must cover all aspects of valid consent. GMC Guidance - Must give patients information they want or need to make a decision - No assumptions about information a patient might want or need Who can consent? - Adult competent patient - Young person aged 16 and 17 - Parent for those under 16 - No common law proxy allowed - Presumption of capacity for adults - Burden of proving incapacity on the doctor Mentally disabled patients - can't assume they lack capacity Capacity - Any decisions for the assessment of capacity falls under the Mental Capacity Act 2005. - Deals with questions of capacity in relation to acts/decisions. - Applies to adults, all children except - Advanced decisions - LPAs - Generally inapplicable to under 16s Capacity -- presumption - Presumption of capacity - Only rebuttable if it comes under the principles of the MCA Capacity -- assessment - Re C -- mummified foot, refused to give consent for amputation. Surgeons argued lack of capacity. - 3 stage test -- is the patient able to - Understand and retain information - Believe it - Weigh it up in the balance? - Re C -- was proven to have capacity. - Re MB -- phobia was impairing her ability to give consent. Court authorised treatment. MCA 2005 - Presumption of capacity - All practicable steps taken to assist - 'Allowed' to make unwise decisions - All acts (on behalf of the person lacking capacity) must be in best interests - 'Regard' to least restrictive option (of the patients rights 'Lack of Capacity' - 'if at the material time he is unable to make a decision for himself in relation to the matter because of impairment of or a disturbance in the functioning of the mind or brain.' - 'Impairment of or a disturbance in the functioning of the mind or brain' (diagnostic threshold' - 'He is unable to make a decision' -- (functional test) - Whether permanent/temporary - Balance of probabilities - Not merely by reference to age/appearance/a condition of his/ or aspect of their behaviour which might lead to unjustified assumptions ('principle of equal consideration') - 'Lack of capacity' s.2 - Capacity is both issue-specific and time-specific. A person may of capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question to person lacks capacity in question. - Diagnostic and function test - Local authority v TZ -- patient who lacks capacity -- autistic. Wanted a sexual relationship, do they have capacity? They do have capacity, however, needed support of a care package. Decision specific. Not a one size fits all situation. Assessment S.3 -- unable to make a decision if unable to \- understand relevant information \- retain information \- use/ weigh up that information \- communicate the decision. Capacity assessment - 2 stage process - A. Is there an impairment/ disturbance of functioning mind/brain? - B. Is it sufficient that the person lacks capacity to make the particular decision? Incapacity -- if so what next? - Pre-MCA at common law -- doctrine of necessity. - Problem was that it seemed limitless and there was concern about how far it stretched. Present - Where P lacks capacity - Duty/power to act/ treat in best interests (s.4) Best interests -- s.4 - Person making determination must consider all relevant circumstances -- not just clinically. All factors relevant to particular patient. - Must take certain steps (checklist) - No determination merely on basis of age/appearance/condition aspect of behaviour -- principle of equal consideration - Duty to take steps apply also to any power exercised where D reasonably believes P lacks capacity - Complies where 'reasonably believes' act in BI (having followed steps) Best interests -- steps - Consider likelihood of P regaining capacity and when - Permit and encourage participation -- so far as reasonably practicable - Consider - Past and present wishes and feelings - Beliefs and values likely to influence decision if capable - Other factors P likely to consider if able to - Take into account, if appropriate and practicable to consult (as to what in B.I) views of - Anyone named by P as a person to be consulted - Carter - Donee of LPA - Deputy - IMCA (if applicable) S.5 -- protection from liability Where person doing act (D) - Takes reasonable steps to establish lack of capacity - Reasonably believes P lacks capacity and act's in P's best interests - Then position same as if P is capable and consenting Must have addressed all issues in order to get s.5 protection. Acts in connection care/treatment - Limitations - Subject to advance decision - No authority to act in conflict with LPA/Deputy decision - Restrained - However not prevented from providing life saving treatment/ act reasonably necessary to prevent serious deterioration pending court ruling. - Restrictions - No act intended to restrain - Unless s.6 -- - Reasonable belief necessary to prevent harm to P - AND - Proportionate response to likelihood of P suffering harm and seriousness of harm. - Restraint - Use/threatens to use force to do act P resists - Restriction of liberty whether or not P resists - Mental Health Trust v DD Deprivation of liberty - HL v UK 2005 -- 48 and autistic. Living with paid carers for several years. Became agitated and was taken to hospital. Carers went to hospital to take him home, were denied access. Had HL tried to leave, he would have been detained by trust. Not detained under mental health act. Hol agreed he could be detained. ECHR argued it was a breach to his article 5 rights. Was an informal patient. - Became known as the 'Bournewood gap' - Supreme Court judgement Cheshire west and Chester council v P - Acid test to be applied is -- whether P is under continuous supervision and control and not free to leave. Deprivation of liberty - 'Not free to leave' means not free to leave that accommodation permanently. What this means to clinicians - Any DOL must be authorises -- legal authority must come from Mental Health Act or DOL safeguards (all I need to know) - Not legal authority -- in contravention of art 5 - DOL safeguards described as 'deeply flawed' Mental capacity act -- DOL safeguards due to be replaced by LPS -- not happened yet. S.5 acts requiring careful consideration Code 5.10 - Includes major medical decisions - Withdrawal ANH - Organ donation - Non-therapeutic sterilisation - Some termination of pregnancy cases - Doubt re BI Case law; MCA in practice Capacity tests Local Authority v A (2010) - 29 year old woman with severe learning disability - Two previous children taken into care - Capacity to decide whether to use contraception? - LA argued she had to be able to 'understand and envisage what would actually be involved in caring for a committing to a child' KK v STCC (2012) - 82 year old living and well cared for in nursing home but wanted to go home. - 'If I fall over and die on the floor, then I die on the floor' - Has capacity to decide where she goes. Best interests tests NHS trust v DE & others (2013) - 36 year old man - Capable of sexual consent -- no capacity to make decisions around contraception - Previous son -- did not want to be a father again - Long standing relationship - Vasectomy in his 'best interests' Re DD (2015) - 36 year old autistic woman - Had 6 children in 12 years all being raised by carers - In long term relationship with BC who had significant learning disability - Future pregnancy 'highly likely to lead to her death' - Best interests to be sterilised although evidence as to wishes and feelings was ambiguous - Order granted allowing forcible entry to DD home. An NHS Foundation trust and Ms X (2014) - Anorexic patient repeatedly force fed over many years under the MHA - She had end stage liver disease - Force feeding increased distress and alcohol intake - Advance decision refusing treatment for end stage liver disease - Not in best interest to have force feeding forced upon her Aintree university hospitals NHSFT v David James - Futile, no prospect of recovery for that patient. Barnsley Hospital NHSFT v MSP - Patient was at risk of having a stoma - No account wanted to be resuscitated - Did not want to live the rest of his life with a stoma - Ended up with a stoma - Took off ventilation -- for particular patient, could not accept living with a stoma MHA 2005: LPA Lasting Power of Attorney (LPA) - S.9 - P gives donee authority to make decisions - May be revoked at any time (where P has capacity, s.13) - Can cover personal welfare/property - P must be 18 & capable to create LPA - Procedural requirements (s.10, prescribed form and registered) - Authority is subject to best interests LPA -- restrictions (s.11) - Within LPA itself - No restraint (see above) - Personal welfare decisions can only be made where reasonable belief P lacks capacity to make that decision - Subject to any advance decision - Can extend to consent/refusal of treatment - But must expressly provide for authority to refuse/consent to life sustaining treatment Court of protection powers - CoP combines functions of old CoP with that of the high court developed 'inherent jurisdiction' role in relation to incapable adults - Make declarations -- s.15 - Capacity -- lawfulness of act/omission. Advance decisions - To refused treatment (s.25) - P must be 18 & capable when made - Relates to a time when lacks capacity - Can refuse specified treatment(s) -- but not basic care? See code 9.28 -- being kept warm, comfortable and given food. Can refuse tube feeding. - May be withdrawn at any time has capacity - No procedural requirements -- unless refusal of life-sustaining treatment (see s.25, 26) - These must - Be verified in a statement by P (and witness) - Be in writing - Signed by P - Witnessed - Advance decision must apply to current treatment - Re E (2012) -- extreme consequences of following advance decision.