Consent is the acceptance or approval of what is planned or done by another
- The process by which a patient is informed and voluntarily allowing a procedure or investigation to be performed on themselves, having considered the risks and benefits.
We have a legal, medico-legal and ethical obligation to obtain consent from out patients:
- Legal – carrying out procedures (including anaesthesia and administration of drugs) on a patient without consent of a patient or their legal care giver could be construed as assault.
- Medico-legal – our protection against claim of negligence should a complication arrive and a patient feel that they were unaware of the risks involved despite procedure being carried out competently.
- Ethical – gaining consent from out patient shows respect for patient autonomy and patient self determination and avoids paternalistic medicine.
CRITERIA FOR VALID CONSENT
- patient must be legally capable of giving consent (competent)
- consent must be informed
- consent must be specific
- consent must be freely given
- consent must cover that which is actually done
Things that should be covered in consent discussion (PP-BRAN)
- process involved
- person performing procedure
- significant risks that would affect the judgment of any reasonable patient
- what would happen if nothing is done
HOW CONSENT IS GIVEN
- Implied: e.g when pt allows blood to be taken. Not sufficient for more major procedures.
- Verbal: just as valid as written, needs to be documented in the notes.
PATIENTS NOT LEGALLY ABLE TO GIVE CONSENT
- Age of consent is contentious, but definitely not < 14 y.o
- Intellectual and emotional maturity is actually more important than chronological age.
- In a genuine emergency, the care of the patient is the most important factor, and the absence of parent or guardian is not a bar to an emergency procedure. Just need to document the steps taken to try and get consent and why treatment must be carried out. Good to get a 2nd opinion from a senior doctor or approval from director of clinical services.
- Where parents refuse blood transfusion for their child based on religious beliefs, legislation allows doctors to give blood if required to sustain life.
Intellectually disabled other than mild
- Guardian or Guardianship board needs to be involved.
Mentally ill, only if deemed incompetent to give consent by attending doctor
- Need to consider Mental Health Legislation.
Patients disabled by drugs and alcohol
- The legal position is unclear as to whether an intoxicated person can give consent
- acting in the best interest of the patient is likely to be defensible in the event of an action — consider being sued for assault and wrongful imprisonment versus being sued for damage that occurred to the patient who was allowed to leave
TREATMENT DECISIONS WHEN A PATIENT IS INCOMPETENT
When a patient is incompetent treatment decisions may be made based on an advanced directive or by a substitute decision maker
- advance directives are written or verbal prior declarations of what the patient’s wishes are or would be in given situations
- the substitute decision maker may be a guardian, a medical power of attorney or a person responsible (e.g. spouse)
- the substitute decision maker has a responsibility to satisfy either one of two legal standards:
- the best interest standard (making a decision in what is considered to be the patient’s best interest)
- the substitute judgement standard (attempt to reach the same decision that the patient would have reached had they remained competent)
References and Links
- CCC — Capacity and Competence
- CCC — Consent and competence in children
- CCC — Consent
- CCC — Treatment Decisions when patients lack competence
Journal articles and textbooks
- Snow HA, Fleming BR. Consent, capacity and the right to say no. Med J Aust. 2014 Oct 20;201(8):486-8. PubMed PMID: 25332041. [Free Full Text]
- Stewart C, et al. The Australian Medico-Legal Handbook (1st edition), Elsevier,2007 [Google Books Preview]