Legal considerations

Chapter 2 Legal considerations



Andrew Parsons



CHAPTER CONTENTS


Consent 5
General principles 5
Informed consent 5

Obstetric cases 5
Special types of patient 6

Capacity 6
The Common Law (until 2007) 6

Is the patient mentally competent? (The capacity test) 6

Advance directives (also known as living wills) 6

Treatment without consent 7

The Mental Capacity Act 2005 7
Principles relating to capacity 7

Capacity test 7

Best interests 7

Additional matters covered by the Mental Capacity Act 8

Applications to the court to authorise medical treatment 8

Guidelines for court applications 8

Surrogacy 9

Termination of pregnancy 9

Confidentiality 10
When confidential information may be passed on 10

Registration of births and stillbirths 10

Negligence 10

Medical records 11

Human Rights Act 11

Issues of clinical governance 11

Litigation as a result of medical treatment is increasing. This chapter provides guidance on some of the most common issues likely to arise in the labour ward. However, it is only a brief summary of the law in England and Wales, and in cases of any doubt legal advice must be obtained.



CONSENT



General principles


A patient has the right under common law to give or withhold consent to medical examination or treatment. The courts have ruled that a mentally competent person has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where the decision may lead to the patient’s own death. Until the Mental Capacity Act comes into force in April 2007 (see below), no one else (even next of kin) can consent on behalf of an adult patient (whether competent or not): it is a widely held misconception that a family can consent on behalf of the patient – they can not. The different types of consent are outlined in Box 2.1.



Box 2.1 Types of consent


Implied: Consent not discussed but implied by action. An example is offering arm for venepuncture.


Verbal: Consent is sought and verbal permission for procedure is obtained. Documentation of this is advised.


Written: Documentation must be obtained if procedure or treatment carries risks or has side effects.



Informed consent


Patients are entitled to receive sufficient information in the way that they can understand about proposed treatments, possible alternatives and any significant risks (which may be special in kind or magnitude or special to the patient), so that they can make a balanced judgement. Box 2.2 lists the essential features of informed consent.



Box 2.2 Essential for informed consent



• Document discussions and treatments in detail, particularly when consent is not available or refused.

• Give information in language which is sensitive and at appropriate level for easy understanding. Allow time for questions and reflection.

• Information must be balanced and in adequate detail to allow meaningful choice of options.

• Consent must be obtained by the person who will perform or is able to perform the procedure. The person or team performing the procedure must be disclosed.

• Separate or additional consent must be obtained for further procedures – unless treatment is immediately necessary in the patient’s best interests when consent cannot be obtained.

• Where training is involved, the level of experience and supervision must be indicated.


Obstetric cases


A woman who is mentally competent to make a treatment decision may choose not to have medical intervention, notwithstanding the risk to her health, and even though the consequences may be the death or serious handicap of the child she bears or her own death. It is the patient’s right to make such a decision and medical staff have no power to override this. Furthermore, in such cases the court does not have jurisdiction to declare medical intervention lawful.



Special types of patient



Children (i.e. under 18 years)


Those over 16 years can consent to treatment on their own behalf. For those under 16, the person(s) with parental responsibility has the power to make treatment choices for the child, unless the child is ‘Gillick competent’, in which case the child can consent. The wellbeing of the child is paramount. Application may be made to the court (as part of its inherent jurisdiction or under the Children’s Act as a specific issue order) to provide legal sanction for a specific action when doubt or dispute arises.



Psychiatric patients


Patients with mental illness or disability have the same rights as other patients. Mental illness (even detention under the Mental Health Act) does not of itself render them incompetent to make treatment choices unless their illness is so severe so as to mean that they are unable to make a treatment choice and are thus incompetent (see below). However, patients detained under the Mental Health Act can be treated without consent under the direction of their resident medical officer (RMO) if the treatment is for their mental disorder (section 63 Mental Health Act).



Jehovah’s Witnesses


Such patients absolutely refuse the transfusion of blood and blood products even where life is put at risk. Alternative treatment should be considered. It is essential to establish the views held by each Jehovah’s Witness patient as some transfusion treatments may be acceptable (such as blood salvage techniques, haemodilution, haemodialysis, cardiopulmonary bypass, albumin, immunoglobulin, clotting factors). To administer blood in the face of refusal may be unlawful. Mentally competent adult patients are entitled to make such a refusal even if others may percieve this to be unwise. This may be by advance directive (which may be oral or written). Treatment of the children of Jehovah’s Witnesses may require application to the court for an order.



Capacity



The Common Law (until 2007)




Is the patient mentally competent? (The capacity test)


In determining if a patient is mentally competent, and therefore whether she has capacity to consent to, or to refuse treatment, the patient must be assessed as being able to:


1. understand and retain the treatment information

2. believe it

3. weigh it in the balance to make a choice.

Only if the patient can do all this is she capable of consenting. This test relates to the patient’s ability to make a decision but is not concerned with the rationality of it – a capable patient is entitled to make a wholly irrational decision.



Advance directives (also known as living wills)


Advance directives are decisions made while a person has the necessary mental capacity, intended to give effect to wishes as to how treatment or care should be provided in the event they lose capacity.


Advance directives are recognised by English law. They are potentially valid instructions as to which medical treatment that person would or would not be prepared to accept if she should subsequently lose the capacity to decide. However, clinicians are not legally bound to provide treatment if it conflicts with their professional judgement about the most appropriate treatment. Nevertheless the patient’s wishes should be taken into account in deciding the appropriate course of action. An advance directive cannot authorise a doctor to do anything that is illegal. They may express preferences between treatment options or list an individual’s values as a basis for others to reach decisions. They can be in writing or oral.


Healthcare proxies (i.e. the purported delegation to a third party of the right to make a decision to consent to or refuse medical treatment) are not recognised currently in English Law.



Treatment without consent


Only if the patient is not mentally competent can treatment proceed without consent. In which case the following must also apply:


1. The proposed treatment must be necessary to save the patient’s life or prevent deterioration in her physical or mental health.

2. The proposed treatment must be in her best interests. (Note: the best interests of the fetus – save to the extent that delivery of a healthy child is in the woman’s best interests – does not form part of this test.)

3. The treatment must be such as would be accepted as appropriate by a responsible body of medical opinion.


The Mental Capacity Act 2005


In 2007 the law relating to adults who lack capacity will be changed and governed by the Mental Capacity Act 2005. It provides a statutory framework for assessing whether a person has capacity and a regime for making decisions on their behalf. It has wide ranging applicability covering both financial affairs and personal welfare (including healthcare decisions).



Principles relating to capacity


The Mental Capacity Act is underpinned by five key principles:


• A presumption that every adult has capacity unless it is proved to the contrary.

• A right for individuals to be supported to make their own decisions and given all appropriate help to do so.

• The right to make what may be seen to be unwise decisions.

• Anything done for or on behalf of an individual without capacity must be in their best interests.

• Anything done for or on behalf of the person who lacks capacity should be the least restrictive of their basic rights and freedoms.


Capacity test


The Act defines incapacity as an inability to make a particular decision because of an impairment of, or a disturbance in the functioning of, the mind or the brain. Capacity is issue specific: an individual may have capacity to undertake some decisions but lack capacity in respect of more important ones. Capacity cannot be established merely by reference to a person’s age, appearance or any condition or aspect of a person’s behaviour which might lead to unjustified assumptions about capacity.


Capacity is to be assessed using a statutory test. This specifies that an individual is lacking capacity if they are unable to make decisions due to:


• The individual is unable to understand the information relevant to the decision.

Related posts:

  1. Attitudes and conduct
  2. Abnormal labour
  3. Episiotomy and tears
  4. Assisted vaginal delivery and shoulder dystocia

Stay updated, free articles. Join our Telegram channel
Tags:
Mar 16, 2017 | Posted by in NURSING | Comments Off on Legal considerations

Full access? Get Clinical Tree
Get Clinical Tree app for offline access