The Context of Consent - Coursework Example

Consent Consent is permission or approval that a health professional must seek before initiation of any treatment, examination orcare. In the Code of Practice according to Mental Health Act 1983 (1999) it is stated `Consent is the voluntary and continuing permission of the patient to receive a particular treatment, based on an adequate knowledge of the purpose, nature, likely effects and risks of that treatment including the likelihood of its success and any alternatives to it. Consent derives from the Latin word consentire, which means to think or feel together (Faulder 1985 cited in Booth 2002). He defines its current usage as a ‘voluntary compliance’, which means freely agreeing to a proposal . The consent may be oral, written, expressed or implied. Implied consent is a form of consent assumed by the practitioner from an act by patient indicating their compliance to the procedure, like the patient rolls up the sleeves for the practitioner to note blood pressure. Expressed consent is the approval to a treatment given orally or in written after being informed about the proposed treatment and risk involved. In present day context, consent is believed to foster patient-practitioner relationship and asserted to be in accordance with medical ethics. Moreover, it supports the idea of patient centered care, and hence is reinforced by professional guidelines and law. The valid consent is based on adequate knowledge of the purpose, nature, likely effects and risks of that treatment. So, it becomes mandatory for the practitioner to provide complete information to the patient related to the treatment, which includes procedures, medication, benefits, risks involved and alternatives, if available. The health professional must ensure appropriate language and terminology is used while explaining the treatment, its need, possible risk and alternatives to it. But for the consent to be meaningful the person must be competent enough to understand the information provided and evaluate the available choices to decide. This capacity to consent varies from person to person. Various guidelines have been provided for this purpose to assist the health professionals. According to the Mental Capacity Act (2005) a person has capacity to give consent for himself if he is able to - (a) understand the information relevant to the decision, (b) retain that information, (c) use or weigh that information as part of the process of making the decision, (d) communicate his decision (whether by talking, using sign language or any other means). Children: The children below 16 years of age can give consent if considered competent enough but they are always encouraged to involve people with parental responsibility help them decide. Children Act 1989 highlights the need for a young person or child to give consent if he or she is deemed to be "Gillick competent"--that is, of sufficient understanding to make an informed decision (Elton et al 1995). Young people aged 16 and 17 are presumed to have the competence to give consent for themselves. But the Family Law Reform Act, 1969 asserts that in case the minor, who has attained 16 years of age gives consent to a medical procedure it shall not be necessary to obtain consent from his parent or guardian (Bakshi 2000). In the guidance laid by Department of Health (2001) for consent from children it is asserted when nobody is available to give valid consent, for example, the child is seriously injured and no-one with parental responsibility can be contacted then it is lawful to provide immediate treatment in the best interest of the child. Adult Patients: The Department of Health informs in English Consent Laws , any person above 18 years of age is considered adult. Adults should be assumed competent unless demonstrated otherwise. In case the practitioner does not approve of the decision further information or explanation should be provided instead of considering the person not capable. The guidance provided by Department of Health (2001) on consent from older people suggests adults are always presumed to be capable of taking healthcare decisions, unless the opposite has been demonstrated. This applies just as much to older people as to any other adult: age or frailty alone is not a reason for doubting a person’s capacity. It further states, where a patient’s capacity is fluctuating you should if possible delay treatment decisions until a point when the patient has the capacity to make their own decision. Patient with Mental Disorders: Mental disorder does not always make a person loose his ability to take decisions. So, considering the condition of patient information should be provided about the treatment. In the Code of Practice according to Mental Health Act 1983 (1999) it is stated that mental disorder does not necessarily make a patient incapable of giving or refusing consent. Capacity to consent is variable in people with mental disorder and should be assessed in relation to the particular patient, at the particular time, as regards the particular treatment proposed. Barkar (1997) asserts that when a mentally disordered patient needs treatment for a physical disorder, a psychiatrist should be consulted to confirm the presence of mental disorder and the treatment of the medical condition be undertaken in the best interests of the patient. No one can give consent on behalf of these patients, but it is wise to seek the views of close relatives and to take a second consultant opinion. For irreversible procedures (such as sterilization or amputation) permission should be sought from the Family Division of the High Court. Section 63 of Mental Health Act 1983 suggests that medical treatments given for mental disorder do not require patient consent. According to Staden and Krüger (2003) the conditions necessary for informed consent from a person with mental disorder are- mental disorder should not prevent him/her from understanding about treatment, choosing decisively for/against the intervention; communicating his/her consent and accepting the need for a medical intervention. Patient with Learning Disabilities: The guidelines provided by department of health in Seeking Consent : working with people with learning disability (2001) implies that even people with learning disabilities must be considered capable of giving consent, unless proven otherwise. The health care professionals may seek help of learning disability teams, speech or language therapist to assess capacity of the person and also, from his friends, family, independent supporters, advocate in enabling the person understand the treatment, risk involved as well as alternatives available. Although, no one can give consent on behalf of adults unable to give consent but treatment may be provided considering the best interest of the person. However, those close to the incapacitated person should always be involved in decision-making, unless the person makes clear that they don’t want particular individuals to be involved. Need and Importance of Consent : Patient Centred Care : The concept of consent is being utilized for fostering health professional-patient relationship. The involvement of patients in decision making process relating to health care has improved outcomes of care and adherence to treatment. The consent seeking process demands that the practitioner and patient discuss the particular medical intervention-its necessity, risk involved and alternatives available. Only after the patient agrees, the practitioner can begin the treatment. So the concept of consent has given authority of decision making to the patient, suppressing paternalism. Coulter, Angela (2002) believes patients who are well informed about prognosis and treatment options, including potential harms and side effects, are more likely to adhere to treatments and have better health outcomes. They are also less likely to accept ineffective or risky procedures. Worthington (2002) asserts informed consent empowers patients and allows them to take part in critical decision making. Respecting patient autonomy is fully consistent with the trend towards showing greater respect for patient rights in the general context of health care service provision. Habiba (2000) feels consent has become a dominant concept in medical ethics, and its strength has been enhanced by its incorporation in the declarations of Helsinki, in the World Medical Associations declaration on the rights of the patient (Declaration of Lisbon), and in codes dealing with research. The upsurge of anti-paternalism has indicated the enforcement of the notion that consent should be "informed". Coulter, Angela (2002) suggests doctors could reduce the incidence of medical errors and adverse events by actively involving patients. Patients who know what to expect in relation to quality standards can check on the appropriate performance of clinical tasks. Respect for autonomy : Autonomy is considered the right to self-determination and personal freedom. Gillian (1994) suggests autonomy is ‘self rule’ and the right to autonomy is a moral obligation. She believes, in health care respecting peoples autonomy requires health practitioners to consult people and obtain their agreement before treating them - hence the obligation to obtain informed consent from patients before trying to help them. The doctrine of informed consent therefore respects the patient’s right to autonomous self-determination. (Booth 2002) But it also requires complete information be provided to the patient to enable him decide. Beauchamp and Childress (2001, p78) defines informed consent as an individual’s autonomous authorization of a medical intervention, and the process of gaining and seeking consent as a participation in a treatment programme, which is according to ethical requirement to respect individual autonomy. Beneficence, Non-Maleficence and best interest : The health care professionals have moral duty to provide most effective treatment with minimal harm that is-beneficence and non-maleficence. Gillian (1994) feels offering each patient net benefit requires respect for the patients autonomy. In other words, to ensure patients are benefited from the treatment and no harm is brought upon them, either in physical or psychological terms, practitioner should obtain consent of the patient. The principle of beneficence and non-maleficence are closely related to the concept of ‘best interest’. NMC code of professional conduct (2004) guidelines establish that, when a person is unable to give consent to a life saving treatment, care may be provided in best interest of the person. In the guidance provided by Department of Health (2001) on seeking consent from older people, the courts have made clear that a person’s “best interests” are not limited to what would benefit them medically. Other factors, such as the views and beliefs that they held before they lost capacity, their general well-being, their relationships with those close to them, and their spiritual and religious welfare, should all be taken into account. Mental health Act 1983 (1999) suggests treatment may be given to patient not capable of giving consent in the patients best interest if it is necessary to save life , improve patients health ( physical or mental) or prevent a deterioration and should be accepted by a team of skilled practitioners for that treatment. Tingle and Cribb believe that English Laws allow the incapacitated patients to be given such treatment as those treating them to believe in their best interest (Re F) House of Lords consented sterilization of mental health patient to prevent her from becoming pregnant considering it to be in her best interests.(Tingle J, Cribb A Nursing Law and Ethics Legal Consideration Consent acts as lawful justification for treatment and treating any patient against his/her wishes is an offence. In law, health professional may be charged with battery or negligence for not respecting patients wishes. Battery: In general, if a person touches another person without consent this constitutes battery for which damages may by awarded and in extreme cases, a criminal prosecution may be brought. The English common law absorbed it from1914 US case of Schloendorff v Society of New York Hospital ,in which a surgeon removed fibroid while performing abdominal examination under anesthesia even though patient had requested no operation.(Hope, Savulescu, Hendrick 2003) Negligence: The practitioner is considered negligent if he/she fails to provide complete information to the patient, especially the risk involved before receiving consent. To assess whether the health professional was negligent or not Bolam test is used. The care of Bolam v Friern Hospital Management Committee (1957) produced this test of what is reasonable: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent … it is sufficient if he exercises the skill of an ordinary competent man exercising that particular art.”( United Kingdom Central Council for Nursing, Midwifery and Health Visiting 1996) McHale and Gallagher (2004) suggest a number of articles contained in the European Convention Human Rights can be seen as being applicable in relation to consent to treatment. Article 2 ( right to life )-might have a bearing on consent if patients/clients are not adequately informed about the risks of surgery. Article 3 ( prohibition of torture-could appeal )-could appeal if patients/clients are coerced into treatments or activities which they think are degrading or inhuman. Article 5- the right to liberty and security of the person. Article 8- right to respect for private and family life. Article 9 ( freedom of thought, conscious and religion )and Article 10 ( right to freedom of expression ) which supports the patient in refusing interventions on the basis of culture and religion. Article 12 ( right to marry and to form a family ) people with learning disabilities may refuse contraception or sterilization. Article 14 ( prohibition of discrimination ) might apply if there is differential treatment in the respect given to refusal of treatment by adult and children. References: Bakshi (2000). Age consent for medical treatment. Lawyers Collective Barker, Ann (1997). ABC of mental health: Mental health and the law. BMJ 315:590-592 Beauchamp, TL and Childress, JF (2001). Principles of Biomedical Ethics, 5th edition. Oxford: Oxford University Press Booth S (2002) A philosophical analysis of informed consent.Nursing Standard. 16, 39, 43-46. Coulter, Angela (2002). After Bristol: putting patients at the centre. BMJ 324:648-651 Department of Health and Welsh Office(1999). CODE OF PRACTICE Mental Health Act 1983 Department of Health. English Consent Law Department of Health (2001). Seeking consent : working with children Department of Health (2001). Seeking consent : working with older people Department of Health (2001). Seeking consent : working with people with learning disability (2001) . Department of Health.12 key points on consent: the law in England Elton, Anne , Honig, Peter , Bentovim, Arnon , Simons, Jean (1995). Withholding consent to lifesaving treatment : three cases. BMJ 310 (6976) : 373-377 Gillon, R (1994). Medical ethics: four principles plus attention to scope. BMJ 309 :184 Habiba,Marwan A (2000). Examining consent within the patient-doctor relationship. J Med Ethics 26:183-187 Hope,T Savulescu,J Hendrick,J (2003). Consent. Medical Ethics and Law : The Core Curriculum. London : Churchill Livingstone McHale,J and Gallagher,A (2004). Human Rights and Consent to treatment. Nursing and Human Rights. London : Butterworth Heinmann p 51,52 Mental Capacity Act 2005. Chapter 9. http://www.hmso.gov.uk/acts/acts2005/20050009.htm NMC Code Of Professional Conduct (2004) Staden,C W Van and Krüger, (2003). Incapacity to give informed consent owing to mental disorder .J Med Ethics 29:41-43 UKCC (1996). Guidelines for professional practice. < http://www.nmc-uk.org/aFrameDisplay.aspx?DocumentID=630 > Worthington, R (2002). Clinical issues on consent: some philosophical concerns. J Med Ethics 28:377-380 Read More