Why is consent a good thing?
- deontological justification
- consequentialist justification
What are the four criteria for valid consent?
- patient must have capacity
- patient must Gove consent voluntarily
- patient must be informed
- consent must be continuing
What form can consent take?
- written consent - (fertility treatment, good practice in surgery)
- assumed consent - seeking and complying with treatment
- verbel consent
Explain “free to make decisions”
a mentally competent patient has a right to refuse consent to medical treatment for any reason - rational, irrational, or no reason - even if that reason leads to their death
What are the two approaches to capacity?
- status
- function
the law uses a combination
Adult capacity? (Scotland)
When a person is ABLE to:
- understand information
- retain the information
- use or weigh the information
- communicate their decision
- hold decision consistently
Adult incapacity? (Scotland)
When person is INCAPABLE of: - acting - making decisions communicating decisions - understanding decisions - retaining the memory of decisions
Mental Capacity Act England?
- person assumed to have capacity unless established otherwise
- person not to be treated as if they lack capacity to make a decision unless all steps have been taken to help them in the decision making process
- person not to be treated as unable to make a decision, just because the decision is unwise
- decision made on behalf of a person who lacks capacity must be in that persons best interests
Why might someone lack capacity?
impairment of, disturbance in the functioning of, the mind of brain
- can be permanent or temporary
Define capacity?
sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose, and consequence of any act or transaction into which one proposes to enter
What makes assessing capacity difficult?
- not a once and for all judgement - things can change
- non-cooperation - patient not willing to be assessed for capacity
- just because decision is bizarre does not mean patient lacks capacity
- underlying conditions may cloud your judgement - may or may not affect patients capacity- assumptions
- communication problems
Who can be proxy-decision makers?
- power of attorney (PA) - welfare attorney
- advanced directives/decisions (note on JW)
- best interests test (HCP, relatives, carers)
What are the problems with proxies?
- proxy and patient do not always agree
- proxy decisions are normally subject to “best interests” - so not own decision
The age of legal capacity? (Scotland)
- a person of or over the age of 16 years shall have legal capacity to enter into any transaction
- a person under 16 shall have legal capacity to consent on their own behalf to any procedure or treatment where, in the opinion of a qualified medical practitioner attending him, is capable of understanding the nature and possible consequences of the procedure or treatment
What happens with consent for a child under 16?
- consent of one parent is enough
- if disagreement of parents then the court can authorise, overrule but not compel
What is Gillik competence?
describe whether a child under the age of 16 can consent to medical treatment without parental permission or knowledge
- does the minor understand the treatment and its implications enough to give informed consent
What do the Fraser Guidelines apply to?
- prescribing contraception to under 16s
