Patient Consent and the Law - Term Paper Example

PATIENT CONSENT INTRODUCTION: Anything done against the wish of a person is compulsion. Anything done without or in the absence of a person’s consent is overpowering. Such over powering generally erodes others autonomy. This holds good in the field of medicine too. Just by entering into a hospital or by requesting an admission, a patient can not be considered to have foregone his/her rights. The above said actions on the part of patients are purely on the basis of the faith they lay on the medical professionals. Since faith naturally brings along with it the aspects of suspicion, patients are prone to ask more questions pertaining to the details of treatment they are to be placed. Patients being the consumer-partners, medical professionals are necessarily to bring the patient on the discussion table rather than obtaining consent from them before beginning the treatment, especially surgery. Consent thus becomes a legal key to open the treatment formalities. However consent revealed by a patient can not be taken as a permanent pass given by him/her. Patients’ consent are liable to be changed as dissent at any time and this aspect must have to be borne in mind by the health professionals and allow them in the course of their decision making. Consent can either be oral or in writing. However legal validity is found in written and signed consent form. Obtaining consent from the patients is relatively a difficult job for certain modes of treatment process, especially sharing patient identifiable information with clinical audit data base.(Patrica A Mckinney et al, 2005). Len Doyal’s (1997) suggestion of obtaining ‘blanket ‘ approval at the outset is useful at some cases but has to undergo further research on the way as some ethical issues can not be cleared in such ‘blanket’ approval, especially when the patient’s consent are accepted with their fluidity. INFORMED CONSENT: While basic consent is simply informing the patient of the treatment stage and the minimal effect of it, informed consent is bringing the patient into a dialogue of decision- making after providing him/her the relevant medical facts of treatment. To put in layman terms, informed consent means the consent given by a patient after being informed of all the necessary information of treatment options. The necessary information include 1. nature of the decision/procedure. 2. reasonable alternatives to the proposed intervention. and 3. relevant risks, benefits, and uncertainties related to each alternative. To get an informed consent from patients, physicians and nurses must assess the understanding capacity of the patient and their propensity to accept the treatment option placed before them. This practically possible only when they are interacted with. Dialogue and discussion with patients should normally be in laymen style so that the patients feel comfort in the process of decision making. The need for patients consent can be realised only with patients who can not understand the consent form and the related legal aspects of it. The medical professionals are to understand that treatment without obtaining patient consent may amount o battery or assault. (Alexander S.J Shaw, 2005). However, Obtaining consent only when a patient is asked to participate in a formal assessment does not seem rational. (P G Lawler, 2006) ROLE OF NURSES: The role of nursing staff in eliciting patient consent is crucial. Carrying out this job by doctors is relatively difficult, since many a patients like the services of nurses at the initial stages.( Helen Scott, 2002, pp524). British Medical Association’s proposal to design a new model for primary care in which the first point of call for patients should be a Nursing Professional and not a doctor is understandable. The channels for nurses to interact with patients are large that place them in a position to collect all necessary Info about the patients. Not only the therapeutic but also the psychological implications on the patients are known to the nurses in greater proportion. They can rather feel than realise the pain of the patients. Pain has the power to transform a patient’s lucidity. Subsequent changes in the decision by patients are thus quite natural. Hence pain assessment is a key aspect in the nursing management. Nurses’ knowledge of patho physiology, pharmacological knowledge and the knowledge about the patients help them in effective clinical management. (Jennie-April Walker, 2003, pp 494-501). This findings of Jennie Walker add more to the BMA’s proposal of ‘first point call staffing’. The nurse-led preoperative assessment has recently been found to reduce cancellation rates. (Sarah E. Craig, 2005) Treating patients of colorectal cancer especially those with learning disability is a difficult job for nurses. To maintain the patient autonomy nurses must have to address several issues like lack of written information and organisational planning. Treatment and palliative care to such terminally ill patients is really a Himalayan task of striking a balance with their consent. The role of nurses in such situations alone becomes worthy of talk, if they wend with their actions purely on humane basis.(Pat Black and Christine hyde, 2004, 970-975). Emotional factors usually cause change in the decision making process of the patients. Preoperative anxiety is one of the strong aspect that creates anxiety in patients. This is the period when the consent already given by the patients is likely to become a dissent. Emotional issues naturally overpower the patients making their deciding capacity practically fluid. The role of nurses at this juncture is highly crucial and places them in a laudable position if they win the confidence of the patients and make them- the patients-one of the team of operating mission. By allowing the patients to ask as many questions as possible and clearing their doubts to the possible limits will relieve the patients’ anxiety of the operation – theatre atmosphere. Diversion therapy such as music, humour and guided imagery are also found to have excellent effect in reducing preoperative anxiety in patients. Transforming of the consent into dissent is practically reduced to nil by this process of anxiety reduction techniques. (Jennie April Walker, 2002, pp 567-575). Since many patients are not able to understand the legal implications of written consent form, although they are meant to maintain their autonomy, they consider the formalities something redundant or unconcerned. This in many cases are established that patients often do not recognise the written consent procedures as their tool for autonomy. (Andrea Akkad et al, 2006)) PATIENT RIGHTS: Patients have every right to decide upon the health care issues pertaining to their treatment. Despite the recommendations towards the recuperation by the medical team a patient can opt out the recommendation. Likewise he/she has the right to change the expressed consent too. It is obligatory on the part of medical professionals to guide the patient in deciding the treatment option by way of giving him/her all the relevant information of treatment and the anticipated effect of treatment. Recording information on video and photographs must necessarily be made on getting permission from the patient assuring him that the recorded data will not be used for purposes other than furtherance of the treatment, teaching and research. Patient has the right to ask for confiding his/her identity in the records and the professionals are bound to maintain the confidentiality. Usually are willing to disclose their information for research purposes with a prerequisite that they are pre consulted and permission sought for. (Donald J Wilson et al, 2003). The new consent form comprises the process in which patients are precisely informed of the nature of the images to be taken and they are given a two weeks time to give a final consent, during when they can also withdraw their consent already given if any. (Catherine A Hood, Tony Hope and Phillip Dove, 1998) Administering anaesthesia to patients invariably needs to be started only after knowing the consent of the patient. Local or regional anaesthesias may some times be given after just informing the patient, but total anaesthesia must compulsorily be administered after correctly assessing the state of health of the patient. In this process, nurses have naturally to talk to the patients about their previous history and convey the treatment options to patients and elicit their consent. (Department of Health, “About the Consent form”). The provision of English law that enunciates about the expression of consent that one person can not consent for another, even if the capacity is absent must be well understood in the interest of the patient. The law permits the medical professionals to act in the best interest of the patients in such situations and proceeding without any formal consent from the patient is accepted. A person may give consent on behalf of a young patient only if the adolescent patient lacks capacity to understand the treatment options (Vic Larcher, 2005) However the feasibility of advanced consent process to support a randomised controlled trial was conducted by Elizabeth Rees and found that the novel method was workable with patients who could not give consent at the time of randomisation. (Elizabeth Rees, 2003, ) A patient also has the right to refuse a treatment. Although the patient is capacious and can judge his/her own limitation, his refusal should be respected. The role of the medical team especially the nursing community to deal such cases is practically a difficult one. In the name of respecting the patient’s refusal the discussion about decision making should not be treated as ended. Respecting the rights of a patient is as essential as protecting the position of nursing staff or other professionals. This becomes a foremost important issue especially when the patient is required to be resuscitated at the rim of their health condition. Explicit provisions of law in this regard is yet to be evolved. (Bridgit Diamond, 2004, pp 984-986). Treatment for gambling addiction attracts the provisions of refusal very much. Dr.Vivienne Nathanson of BMA, Science and Ethics expresses his concern over the treatment for gambling addicted patients, who are difficult to be included in the treatment process itself. He is of the view that those patients must be treated at par with those drug and alcohol addicts.(Vienne Nathansons, 2007) PATIENT AUTONOMY: No act on the part of medical team should erode the autonomy of the patient. Normally maintaining the confidentiality comes underway the patient autonomy. Circumstances often arise to divulge certain information of the patient or the treatment outcome to others-- though not the aliens-- but people who are related to the case or the patient, the degree of relation may be less. While maintaining the confidentiality in such situations, medical professionals append greater concern to loss of trust that may arise out of breach of confidentiality. Paragraph 18 to 22 of GMC guidelines talk about the maintenance of confidentiality in circumstances which force the nursing team/medical team to strike a balance between law and ethical issues raised by Clinical Ethics Committees. (Carolyn Johnston & Anne Slowther, 2003) Upkeep of relevant documents such as consent form and patient information sheets form part of respecting the patient autonomy. University College London Hospitals (UCLH) advises the signed consent form to be maintained in triplicate; one for the trial record, one for the patient and the last one for the patients notes. Treating the consent form and the patient’s information sheet as a single document would ever highlight the patients’ decision making capacity and subsequent treatment options selected by the patient. This actually keeps the doctors or nurses within the track of maintaining the patient autonomy. ( University College London , UCL Online @ http://www.ucl.ac.uk/clinical-trials/planning/patient-consent/ ). It would be nice enough and perfect if negligence on the part of nursing staff and other professionals is guarded against. Because, it is the negligence that instigate many a patient to sue against the medical professionals. Frequent suing of NHS by patients creates an atmosphere of ‘compensation culture’ among the patients. (John Tingle, 2004, pp 938) This is virtually a sick atmosphere that tempts patients to claim huge amounts as compensation, which mars the medical profession itself by encouraging the medical professionals to resort to defensive practices alone instead of correcting attitude. Maintenance of patient autonomy in no way hinders the medical professionals’ way of maintaining their official status and integrity in their routine. The Law is actually helpful for the straight forward medical professionals, when their decisions and mode of actions are towards the interest of general public even at times they deviate to a little extent from the interest of the patient. The case of a prisoner patient vs. Edgell in 1990 is typical example of this. The Court of Appeal upheld the breach of confidence on the part of Dr. Edgell who opined that the patient was still dangerous as against the notion of the prisoners’ legal advisors. The Court of Appeal felt the risk as imminent and real and hence the order. (W vs. Edgell [1990] 1 ALL ER 835) CONCLUSION; Law in any country is to support the general public especially those who are weak and fragile. Fragility caused by illness making people patients also is considered by the law. Patient rights, patient autonomy, medical confidentiality and other related legal terms are the out come of this goodwill only. Of these, patient consent is the key to all the above said terms. While eliciting patient consent it is of fore most important for doctors and nurses to bear in mind that patients are not always patients, but doctors and nurses are always doctors and nurses. Their duty is to elevate the patients to normal citizens after which the realm of patient hood is vanished both for the ex-patients and the medical professionals. Patient centred consent eliciting involves process of discussion or dialogue in which sharing information outweighs the disclosure of information to the patients. Such process is possible if the same is founded on the patient’s objective. (John Bridson et al, 2003) Patient assessment invariably includes the three key factors: knowledge deficit, physical immobility and anxiety. Addressing these three main factors in addition to the appropriate therapeutic factors would certainly bring a nurse to a clear understanding of the patients’ overall position; thereby retrieving consent from the patient becomes an easy job. *** *** *** *** * Reference list— Alexander S.J.Shaw, 2005, “Do we really know the law about students and patient consent?”, british Medical journal, Vol. 331:522 Andrea Akkad, Clare Jackson, Sara Kenyon, Mary Dixon-Woods, Nick Taub and Marwan Habiba, “ patient’s perception of written consent: questionnaire study”, British Medical Journal. Vol. 333:528 Bridgit Diamond, 2004, “Not for resuscitation instructions: the law for adult patients in UK”, British Journal of Nursing, Vol 13:16 Carolyn Johnston & Anne Slowther, 2003 , “Patient Information and Confidentiality”, UK Clinical Ethics Network, RETRIEVED @ http://www.ethox.org.uk/Ethics/econfidential.htm Catherine A Hood, Tony Hope, Phillip Dove, 1998, “Education and debate”, British Medical Journal, Vol.316:1009-1011 Department of Health, “About the Consent form”: Advice and information, RETRIEVED FROM http://www.dh.gov.uk/PolicyAndGuidance/fs/en on 05.02.07 Donald J Wilson, Karim Keshavjee, Kalpana Nair, Charlie Goldsmith, and Anne M Holbrook, “ Patient’s consent preferences for research uses of information in electronic medical records : interview and survey data”, British Medical Journal, Vol. 326:373 Elizabeth Rees, 2003, “Novel consent Process for dying patients unable to give consent”, British Medical Journal, Vol 327 :198 Helen Scott, 2002, “Patients like the nursing aspects of the nurse practitioner role”, British Journal of Nursing Vol 11: 8 Jennie April Walker, 2002, “Emotional and Psychological preoperative preparation in adults”, British Journal of Nursing, Vol 11:8 Jennie-April Walker, 2003, “Philosophy, knowledge and Theory in the assessment of pain”, British Journal of Nursing, Vol 12: 8 John Bridson, Clare Hammond, Austin Leach and Michael R Chester, 2003, “ Read More