OVERVIEW

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.

IMPORTANCE

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

Requires:

1. patient must be legally capable of giving consent (competent)
2. consent must be informed
3. consent must be specific
4. consent must be freely given
5. consent must cover that which is actually done

Things that should be covered in consent discussion (PP-BRAN)

• process involved
• person performing procedure
• benefits
• significant risks that would affect the judgment of any reasonable patient
• alternatives
• what would happen if nothing is done

HOW CONSENT IS GIVEN

1. Implied: e.g when pt allows blood to be taken. Not sufficient for more major procedures.
2. Verbal: just as valid as written, needs to be documented in the notes.
3. Written

PATIENTS NOT LEGALLY ABLE TO GIVE CONSENT

Minors

• 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 2^nd 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:
  1. the best interest standard (making a decision in what is considered to be the patient’s best interest)
  2. the substitute judgement standard (attempt to reach the same decision that the patient would have reached had they remained competent)

References and Links

LITFL

• 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]