TYPES OF CONSENT
Consent forms
Nurses are familiar with the consent forms given to patients to sign before they go in for an operation. The Department of Health (2001a) has published model consent forms that provide guidance to health professionals.
In law, while a consent form may provide evidence that the patient has consented, the act of signing a form does not itself make the consent obtained legally valid. What is important is that the consent that is given is ‘real’, that is to say it has been obtained freely, without pressure being placed upon the patient and that the patient understands the implications of what s/he is consenting to. There may be situations in which consent may be implied through the patient’s actions. But considered consent is necessary in relation to all serious medical procedures, and failure to obtain that consent may leave a nurse in danger of being held liable in the criminal courts or of being sued for damages in the civil courts.
Express and implied consent
Consent may be either express or implied. Consent may be expressly given in writing or orally. Alternatively, a patient may through his/her actions signify consent, for example the patient proffering her wrist to be bandaged. There are risks in assuming that a patient, in seeking treatment, is consenting to any medical procedure being undertaken. What is important is to ensure that the decision making process is appropriately documented (Nursing and Midwifery Council 2004, para 3.5).
CAPACITY
Generally, patients are presumed to be capable of making their own treat-ment decisions. But in some situations capacity may be called into question. A patient may not appear to understand what s/he has been told or may appear confused. The nurse may need to assess whether this patient is capable of making a particular treatment decision. This task may prove to be particularly difficult if a person has a learning disability or suffers from fluctuating mental capacity. In Re C the court upheld the right of a 68-year-old paranoid schizophrenic who had developed gangrene in his foot to prevent amputation in the future without his express written consent (Re C [1994] All ER 819). Thorpe J. suggested a three-part test to determine whether a patient possessed capacity. Did the patient comprehend the information given to her/him? Did s/he believe it? Had s/he weighed up the information balancing needs and risks before reaching a decision? At the hearing it was claimed that C was not competent because of his delusions that he was a doctor and that whatever treatment was given to him was calculated to destroy his body. But despite these claims Thorpe J. held that he was satisfied that C was capable of giving consent because he understood and had retained the relevant treatment information and believed it and had arrived at a clear choice.
One difficulty with the test laid down in Re C is that it makes capacity dependent upon the information that the patient is actually given (Grubb 1994). If the nurse provides a patient with a great deal of complex information, the patient may not understand it and so it may not fall within the definition of capacity set out in Re C, whereas had the patient been given a very simple basic explanation about the same treatment procedure s/he would have possessed the necessary capacity to consent.
The approach taken in Re C was confirmed by the Court of Appeal in Re MB, a case discussed more fully in Chapter 9 in the context of enforced caesarean sections. In this case the Court of Appeal adopted a version of the test of capacity stated in earlier cases. They held that a person is not capable of making a decision where:
“
(a) the person is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question: and
Should capacity include the right to make an ‘irrational’ decision?
If a patient refuses treatment on what the nurse treating him or her regards as an irrational basis, can treatment still be given?
In Re MB, in which MB refused a caesarean section because of her needle phobia, the Court of Appeal discussed the cases in which a caesarean section was authorised, noting that, in all those cases save Re S, the court had decided that the woman in question lacked capacity. After again stressing the right of the competent adult to consent or to refuse treatment, Butler Sloss L.J. commented that:
She went on to state that:
The Court of Appeal noted that, in Re C, Thorpe J. had suggested that a compulsive disorder/phobia may have the effect that the decision is not ‘a true one’. Temporary incompetence, as the Court of Appeal commented, may erode capacity. This may be due to such factors as were mentioned by Lord Donaldson in the earlier case of Re T – ‘confusion, shock, pain and drugs’.
“A competent woman who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise.
(Re MB [1997] FLR 426, pp 436–437)
“Irrationality is here used to connote a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it.… Although it might be thought that irrationality sits uneasily with competence to decide, panic, indecisiveness and irrationality in themselves do not as such amount to incompetence, but they may be symptoms or evidence of incompetence. The graver the consequences of the decision the commensurately greater the level of competence is required to take the decision.
(Ibid. p. 437)
Thus a patient has, as in Re C itself, the ability to make a decision which some may regard as being irrational even though this may have serious consequences for their health while in other situations a decision which may be irrational may be linked to a lack of competence. This is a fine line and is a matter which is likely to come before the courts again in the future. The law in this area is also reflected in the Nursing and Midwifery Council Professional Code which (Nursing and Midwifery Council 2004) states that
“
3.2 You must respect patients’ and clients autonomy – their right to decide whether or not to undergo any health care intervention – even where a refusal may result in harm or death to themselves or a fetus, unless a court of law orders to the contrary. This right is protected in law, although in circumstances where the health of the fetus would be severely compromised by any refusal to give consent, it would be appropriate to discuss this matter fully within the team and with a supervisor of midwives and possibly to seek external advice or guidance.
Fluctuating capacity
An elderly lady is cared for in a nursing home. She has good days and bad days. She can throw tantrums and yet later appear totally lucid. How far do the nurses caring for her need to respect her wishes?
In assessing capacity, in practice much will depend upon the discretion of the individual practitioner. Good practice would suggest that as far as possible patients should be left to make their own decisions.
The adult lacking mental capacity
Best interest test
Take a situation in which a nurse is asked to care for a patient who has a profound mental handicap or severe brain damage: on what basis can s/he lawfully treat that patient? Until 1990, the legal position as to treating adults lacking mental capacity was uncertain. Prior to the Mental Health Act 1983 the court had had an ‘inherent jurisdiction’ to act for the benefit of adult patients lacking mental capacity, as they have today with regard to child patients (Ch. 6). The basis for such treatment was discussed by the House of Lords in 1990. In Re F ([1990] AC 1), the court was asked to authorise the sterilisation of a 36-year-old woman with severe learning disabilities. The House of Lords held that the operation could be undertaken; it held that the court had no power to authorise treatment of an adult lacking mental capacity through the use of inherent jurisdiction, as it had regarding a child patient (Ch. 6). Prior to Re F it was common practice to get the relatives to sign the consent form. In Re F the court said that such consent had no legal effect. No one had a legal right to give consent on behalf of an adult lacking mental capacity. However, that did not mean that treatment could not be given. The House of Lords said treatment could be given on the grounds of necessity where this was in the patient’s best interests.
‘Best interests’ was originally assessed by reference to what a responsible body of professional practice would regard as being in this patient’s best interests (the Bolam test discussed in Ch. 2). However in later cases a more expansive approach has been taken. Over time the courts have moved away from a totally medically based approach to ‘best interests’. In Re S ([2000] 3 WLR 1288), a case that concerned an application to sterilise a 28-year-old woman with severe learning disabilities, Thorpe J. held that:
He suggested that while Bolam may assist in ascertaining what treatment alternatives are available this is only one part of the assessment. Butler Sloss P also held in that case that Bolam was ‘irrelevant to the judicial decision once the judge is satisfied that the range of options was within the range of acceptable opinion among competent and responsible practitioners’.
“In deciding what is best for the disabled patient the judge must have regard to the patient’s welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed it would be undesirable and possibly impossible to set bounds to what is relevant to a welfare determination.
In Re F the court said that there was no legal duty to refer all cases concerning treatment of an adult lacking mental capacity to the court for approval. Nevertheless in certain situations, for example before major surgery is performed, it believed that referral of the issue to the court would be desirable. This raises the question of whether it is appropriate to leave this assessment to the health professional at all.
The nurse acting as the patient’s advocate may take the view that what a doctor believes to be medically expedient is not actually in that patient’s best interests. The nurse should be able to raise concerns and to take the matter further should s/he believe that the patient’s interests are being disregarded.
What medical procedures are capable of being authorised under the ‘best interests’ principle was left uncertain after Re F. While it appears that generally therapeutic procedures would clearly fall within ‘best interests’, the legality of many non-therapeutic procedures such as non-therapeutic clinical trials is questionable. This issue is returned to below.
The law in this area will be soon subject to change due to the enactment of new legislation in the form of the Mental Capacity Act 2005. This legislation followed an extensive examination of this area undertaken by the Law Commission, a body established by the government to examine areas of law and make recommendations for reform. In its report Mental Incapacity (Law Commission 1995), the Law Commission recommended creating a statutory decision-making structure for adults lacking mental capacity. It took a decade from the Law Commission Report for the final legislation to be enacted. The Law Commission Report proved extremely controversial, in particular those recommendations that concerned end-of-life decision-making, which certain pro-life groups believed constituted the promotion of euthanasia (see Ch. 10).
In the years that followed, the government consulted upon the reforms. Finally a Bill was introduced in 2003 and this subsequently led to the legislation being enacted in May 2005.
The Mental Capacity Act 2005 builds upon the common law in the area, structuring decision-making concerning adults lacking mental capacity within a statutory framework. The Act is due to come into force in 2007. Here we consider the main provisions concerning assessment of capacity. Other specific issues that have arisen as a result of the legislation in relation to clinical research and end-of-life decision making are examined in Chapters 8 and 10 respectively.
In the test for capacity the Mental Capacity Act 2005 builds upon and develops the common law test in Re C. Section 1 of the Act sets out a series of ‘principles’ that are to underpin decision-making. These are to include a presumption in favour of capacity; the requirement that all reasonable steps are to be taken to ensure that the individual makes the decision; and that decisions must be reached on the basis of the ‘best interests’ of the individual. Section 2(1) states that a person will lack capacity where they are unable to make the decision because of ‘an impairment of or a disturbance in the functioning of the mind or brain’. As with the test suggested by Thorpe J. in Re C, any test for capacity is decision-specific; this emphasises the fact that a person may be capable of making one decision while at the same time being incapable of making another decision. Section 3(1) provides that a person is unable to understand the information that is necessary in relation to this decision; unable to retain it; unable to use or weigh the information up as part of the decision-making process or unable to communicate the decision by any means. Information here includes information regarding the foreseeable consequences of the necessary decision (s.3(4)). If a person acts on the best interests of an adult lacking capacity they will not be subject to legal liability if they have undertaken reasonable steps to ascertain that the adult lacks capacity and if they reasonably believe that the person lacks decision-making capacity and that the decision is in the person’s best interests (s.5).
Decisions concerning the adult lacking mental capacity will be as at common law made on the basis of the ‘best interests’ of the individual. Guidance is given in the legislation, in section 4, as to what constitutes an individual’s best interests. Factors that should be taken into account ‘as far as is reasonably practicable’ include an individual’s past and present wishes and feelings, any beliefs and values that would have been taken into account if they had capacity; and any ‘other factors that he would be likely to consider if he were able to do so’ (s.4(6)). The Mental Capacity Act Draft Code of Practice 2006 states that, where certain decisions arise that concern ‘serious medical treatment’, these should be referred for judicial determination. These include withholding or withdrawing artificial nutrition or hydration, non-therapeutic sterilisation of a person lacking capacity to consent, some termination of pregnancy cases and ‘other cases where there is a doubt or dispute about whether a particular treatment will be in a person’s best interests’ (Department of Constitutional Affairs 2006, para 7.17.)
INFORMATION PROVISION
Criminal law liability
Stay updated, free articles. Join our Telegram channel
Full access? Get Clinical Tree
