If consent is not valid, and the patients autonomy is not respected, it can amount to assault. Consent is as important for a patient in accepting treatment as well as in refusing treatment. There is a difference between capacity and competence in that capacity is based on a sliding scale whereas a patient either is or isn’t competent. For consent to be valid it must be from an individual deemed to have capacity, so they must be able to:
- Weigh up
- Repeat back/communicate decision
Consent must be voluntary ie not coerced. It must be informed- Bolam Test is a hypothetical test which dictates how much information we would give a patient, if the majority of a body of reasonable medical professionals would vote in favour for giving the same level of information. This has since shifted to a body of reasonable patients, in light of Mrs. Montgomery’s case- supported by the GMC. In ‘Good Medical Practice and Consent: Patients and Doctors Making Decisions Together’ it is made clear that doctors should provide person-centred care. They must work in partnership with their patients, listening to their views and giving them the information they want and need to make decisions.
NB: Adults are presumed to be competent- children must prove their competence. If 16/17 year olds can do what adults do ie weigh up, communicate etc then their consent is valid as if they were 18. Generally they are presumed to have capacity. Children under 16 years old must be deemed to have Gillick competency. Gillick involves maturity and ability to understand depending on complexity of the procedure. For a child without Gillick competence, the decision is deferred to the parents. However, for a child with Gillick competence the child is allowed to accept treatment but is not allowed to refuse treatment. The decision is deferred to the parents in the case of refusal.
In an adult without competence- Check for an advance directive or lasting power of attorney. If neither of these are present then act on the patients best interest. Advanced directives are written by a patient in order to signify what they would and wouldn’t consent to in the future, if they expect not to have capacity due to their health. This needs to be properly cosigned etc. if its life saving. Can be about any treatment.
Always consider whether there is an immediate risk, and whether the issue can be overcome by effective communication. People may not always object on religious grounds and it is important to understand this, ie some people may be worried due to family members having similar ill-fated procedures. It is good to consider the communication can come from all of the MDT, and it is helpful to tackle it as a team and possibly escalating to an ethics committee. If there is a valid refusal then concentrate on minimizing symptoms and maximizing comfort.<br></div><div><br></div><div>The parents decline treatment on behalf of the child- it is recognized parents can make the wrong decision on behalf of their children, therefore courts have overriding decision. Parents can be prosecuted for refusing treatment for their child- even if on religious grounds. Example of Ashya King.
Competent adult refusing treatment when cooered/not fully informed – Case Study- Re T. Mother JW, whilst father wasn’t. T implicitly stated to her father she was not of that faith. Pregnant involved in RTA. Recorded as ex JW but still having some certain beliefs or practices- this was written in different handwriting to the rest of the entries, so may not have been added at the same time. Treated for pneumonia and patient deteriorates. Father concerned on a separate visit that his daughter is heavily sedated and worries about her condition. Mother visits and then says, whilst the mother is present, she will not accept a blood transfusion on religious grounds. Deemed by nurse to have capacity. Patient goes into labour, transferred with her mother to maternity ward, and again states she objects to a transfusion. Dr tells her there is alternatives which are less effective but blood transfusion is not on the cards at this stage, despite a planned c-section. Midwife provided a form of refusal for consent, which T signed, the midwife countersigned. A signature from an obstetrician was necessary but this was not provided. The proper procedure was not carried out whereby it was not explained the necessity a blood transfusion can be- ie lifesaving. Baby delivered as a still born, and T’s condition worsened. Father sought court the next day. The doctor advises that the patient was under influence of drugs meaning she was detached and not compos mentis, and that she was not aware of the severity of her condition. Ie was she prepared to forfeit her life in exchange for not receiving the treatment? Dr F then changed this evidence that she was compos mentis. In court it was identified that she was. It is worth noting that the reassurance from doctors and nurses to the patient that blood transfusion wasn’t necessary had now actually become a problem because the issue of not knowing if T knew the severity remained- she no longer had the options to alternatives. Neither consented nor refused then deviated to best interest.
Refusing due to a short term phobia- ie a fear of needles/anesthetic, but consenting to the operation, it can be argued that this renders the patient temporarily incompetent. GMC recognise that an individual’s capacity to make particular decisions may fluctuate or be temporarily affected by factors such as pain, fear, confusion or the effects of medication.
When a competent adults choice may lead to the death of a foetus – fetal rights not recognised in case law. Re S- declined caesarean section of religious grounds, was carried out despite this. Re MB- same case as above, refused but was pregnant, decided lawful to carry out procedure (although she eventually consented). In general, 4 pillars. How important is autonomy over foetal personhood/severity of operation (ie refusal of minor treatment which poses threat to foetus or refusal of severe treatment ie surgery)
Unconscious patient- next of kin has no legal right either to consent or to refuse consent. Ideal to get consent before treatment if patients delay in treatment does not adversely affect their health (ie if they are likely to wake up from fainting etc). In general, act on best interest taking next of kin’s views into account to explore alternative treatments. Example – DNR tattoo across patient’s chest- no DNR order- do we know whether this patient had consent etc.