Consent

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  • Created by: Georgia
  • Created on: 08-05-18 23:38
What is the legal purpose of consent
To allow a doctor to perform medical treatment without liability arising
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What is the clinical purpose of consent
To gain cooperation of patients
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What did Re: T (1992) state about consent
No medical treatment of an adult patient with full capacity can be undertaken without consent
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What legal liability may arise if no consent?
Assault and battery allowing criminal and tortious claims to arise
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Can consent be overridden?
Yes in an emergency and establishing child competency
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Does consent for one procedure provide consent for all?
No
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What forms of express consent can their be
Written and oral
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What is the problem with oral consent
If disputes arise, there is a lack of evidence unlike written consent
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What must doctor's adhere to when gaining consent
GMC Guidance
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What gives rise to liability in trespass?
Failure to explain general nature of procedure, which invalidates consent
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What gives rise to liability in negligence?
Failure to explain risk and implications of procedure, which invalidates consent
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What constitutes implied consent?
Words, deeds and actions of the patient (O'Brien v Cunard ** Co.. (1891)
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Is consent doctor specific
No, unless it is private treatment which can only be carried out by identifiable doctor
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Who is responsible for obtaining consent, even if duties are later delegated (Chatterton v Gerson (1981))
Doctor
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What is voluntary consent?
Consent is of patient's own decision not as a result of pressure (Re T (1992))
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What information should be given
Limit to the duty to inform, which should not go beyond what the patient needs to know
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What case is relevant to duty to inform
Devi v West Midlands RHA (1980) - recommending sterilisation, during womb repair, went beyond informing
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What is a doctors duty under Montgomery v Lanarkshire Health Board (2015)
A duty to take reasonable care to ensure the patient is aware of any material risk with treatment
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What is material risk?
In the circumstances a reasonable person in that position would likely attach significance to the risk
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Who has the onus to understand the information
Patient (Al Hamwi v Johnston (2005))
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Who can consent?
Competent and capable adults, 16/17 y/o and parental consent for under 16s
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What presumption is there towards adult capacity
Presumption that all adults are capable and have capacity, the burden lies with the doctor to prove that the adult does not have capacity or competence
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Assessment for capacity was based on?
Common law and Mental Capacity Act 2005
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What did Re JT (1998) state?
Patient may lack capacity for a number of reasons. It may be due to a permanent mental disorder or the short term effects of drink or drugs
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What are the principles for determining capacity under s.1 MCA 2005
Presumption of capacity; all practical steps taken to assist; allowed to make unwise decisions; all acts must be in best interests; regard to least restrictive option
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Can presumption of capacity under s.1 be rebutted?
Yes
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Can a patient make unwise or irrational decisions?
Yes
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What were the test in Re C (1994) regarding the assessment of capacity
3-stage test; patient must be able to understand and retain information; believe it; and weigh it up on balance.
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What did Re MB (1997) do?
Affirmed Re C; “A person lack capacity when some impairment… renders pt unable to make a decision…”.
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What case related to where the patient cannot comprehend, retain or balance information
Re B (2002) Paralysed women wanted ventilator turned off, resulting in death, held pt had capacity to make decision.
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What does s.2 MCA 2005 state?
Patient lacks capacity, if at material time he was unable to make a decision for himself because of an impairment or disturbance in the functioning of the mind that can be permanent or temporary.
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What case/s relate to patient believing information they are told?
Re C and Re MB
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What does s.3 MCA 2005 state?
Patient must be able to understand and retain the relevant information, weigh up the information and be able to communicate their decision.
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What case relates to weighing risks and benefits of information regarding treatment?
R v Collins & Ashworth, ex parte Brady (2002) - Brady went on hunger strike requiring force-feeding. Personality disorder meant could not weigh information, therefore incapable.
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What is the doctrine under the common law for patient's who lack capacity
Doctrine of best interests or necessity
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What did best interest appear to do?
Legitimise any form of medical treatment
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What case applies to common law best interest?
F v W Berkshire Health Authority (1989) - 36 y/o with mental age of 4, couldn’t participate in steralisation decision, it was authorised in her best interests.
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What case relates to the courts only enforcing best interest principle as there was no statutory provision for treatment before the MCA 2005?
St George's trust v S - 36 week pregnant women refused c-section, but was authorise to have one as in her best interests
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If the patient lacks capacity treatment should be in best interests under the doctrine of...
necessity “to save lives, ensure improvement or prevent deterioration in health”.
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What case highlighted that treatment must be what is necessary at the time, not what is convenient?
Williamson v East London Health Authority (1998) - supposed to repair leaky implant, performed mastectomy, which went beyond scope of best interests.
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What case stated doctor's can use reasonable force?
Norfolk & Norwich Healthcare NHS Trust v W (1996) - Ensure an incapable adult can be detained for own protection, using reasonable force.
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Which case did it state patient welfare is paramount and embraces issues wider than medical?
Re S (Sterilisation: Patient's Best interests) (2000)
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What case established the patient could not balance the decision to refuse having a blood transfusion?
NHS Trust v T (2004)
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What did s.4 MCA 2005 replace
Best interest test replaces necessity
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What is the best interest test under s.4 MCA 2005
Taking into consideration all relevant circumstances, with no assumption based on age, appearance or irrational decisions or behaviour, what on the balance of probabilities is in the best interest.
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What is the first of three steps for determining best interest?
Likelihood of the patient regaining capacity, and when this is likely to happen;
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What is the second of three steps for determining best interest?
Past and present wishes, feelings, beliefs, values and any other factors that may affect the patient.
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What is the third step for determining best interest?
Taking into account views of named people, carer, donee of LPA, a deputy or an Independent Mental Capacity Advocate (IMCA).
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What does s.5 MCA 2005 concern?
Care and treatment of patient best interests, protecting clinicians from liability
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Limitations on what can be done to a patient in their best interests
Subject to AD, LPA or Court Deputy Decision
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What restrictions can clinicians do to patients?
Restraints to prevent harm patient
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Is detention lawful?
R v Bournewood Community and Mental Health NHS Trust (1998), held, breach Article 5 European Convention on Human Rights
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s.5 Acts requiring careful consideration include:
Withdrawal of artificial hydration and nutrition; organ donation; non-therapeutic sterilisation; termination of pregnancy; doubt to patients best interests
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What case relates to non-therapeutic sterilisation
A Local Authority v A (2010) - contraception could not be enforced, even if it may be kinder
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What case relates to doubt to patient's best interest?
KK v STCC (2012) - 82 y/o wanted to return home, was deemed to have capacity, even if that mean she would die on the floor
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Is the courts permission required when withdrawing treatment?
No (M v A Hospital (2017)).
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What case considered capacity test
Heart of England NHS Foundation Trust v JB (2014) - Pt with schizophrenia and diabetes refused a required foot amputation. Although clinically a bad decision, she had capacity.
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A case which considered capacity test: best interests
NHS Trust v DE and other (2013) - 36 y/o man, capable of sexual consent, held not to have capacity to make contraception decisions. Vasectomy held to be in his best interests.
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Another case which considered capacity test: best interest
A NHS Foundation Trust v Ms X (2014) - Alcohol dependent required force feeing under MHA 2007 otherwise death. In best interests to stop feeding her even though she would die, as she had made an advance decision.
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Another case which considered capacity test: best interest
Cheshire and Wirral Partnership NHS Foundation Trust v Z (2016) - Anorexic’s best interest not to be force fed, but let pt make right decision.
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What does an LPA give?
Gives authority to make decisions on the patient's behalf however can be revoked if patient has capacity
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What can an LPA cover?
Personal welfare but not consent to restraint
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What happens if a subsequent AD is made
LPA will be inconsistent
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What does the Court of Protection do
Developed an inherent jurisdiction for incapable adults to make declarations of capacity and lawfulness of acts or omissions
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What happens if no LPA?
Court can appoint a deputy to make decisions
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What does s.25 MCA 2005 state?
AD's enable a patient over 18 to refuse treatment
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Under s.25 MCA 2005 what can a patient refuse?
Specific treatment but not basic care
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If an AD is for life sustaining treatment it must be...
Written, signed by patient and a witness
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What case stated AD must be made at the time patient had capacity?
Re E (2012) - Anorexic with AD was invalid as she did not have capacity when it was made
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What case stated AD must be made at the time the patient had capacity?
Newcastle Upon Tyne Hospitals Foundation Trust v LM (2014) - Jehovah’s witness AD regarding blood was upheld as it could not guarantee her survival.
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What age is considered a child?
18
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At what age can someone consent?
16
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What ways can consent be given in relation to children?
Consent from child; s.8 Family Law Reform Act 1969/MCA 2005; Parental Responsibility; Court
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What does s.8(1) Family Law Reform Act 1969 state?
Consent can be given (over 16) for surgical or dental treatment, and will be treated as a trespass if consent is not obtained. No consent is required from parent
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What age does the MCA 2005 apply to in regards to children?
16/17
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Will capacity assessment under s.2 and s.3 MCA 2006 be conducted to determine a child's capacity?
Yes
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Who has parental responsibility?
If married, both parents; if not mother automatically, father through parental order or birth certificate
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Under MCA 2005 what age is a child presumed to have capacity
16/17
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What was established in Gillick v West Norfolk & Wisbech Area Health Authority & DHSS (1985)?
HOL overturned COA stating doctors could give contraceptive advice and abortion treatment to children under 16 without parental knowledge and consent.
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Has Gillick been applied to all medical treatment?
Yes
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What did the Fraser guidelines establish?
Doctor holds opinion pt understand their advice; Cannot be persuaded to inform parent; Likely to begin or continue having sex; Will suffer harm by not receiving treatment, and best interest requires it; Contraceptive advice and treatment maybe given
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Who applies Fraser guidelines?
GP in that consulting room, what that patient
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What does Gillick competence mean to parental rights
Cannot veto consent (NHS Trust v A (2014))
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What is required in assessment of capacity and Gillick competence?
Re E (1993) - 15 y/o Jehova's witness refusing blood, not Gillick competent as had no realisation of full process or consequence of dying, family suffering, later at 18 refused again and died.
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What was the opinion of Lord Donaldson in Re R (1991) and Re W (1992)?
Anorexia destroys ability to reason and have capacity, therefore treatment was ordered
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What was the opinion of Lord Justice Nolan in Re R (1991) and Re W (1992)?
Enforcing paternalism, job to get that child to 18 and overrides 16/17 y/o decisions
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What case concerned the court authorising treatment in emergencies for child's best interest?
Re C (1997) - 16 y/o anorexic, authorised detention with reasonable force
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A case where courts are involved where patients cannot make decision alone, not done for therapeutic reasons
Re J (1999) - F wanted son circumcised, against M’s wishes; application denied as not medically necessary and require consent from both parents.
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A case where courts are involved where patients cannot make decision alone, not done for therapeutic reasons
Re C (HIV Test) (1999) - Parents had HIV, refused child to be tested. Testing authorised as important to determine health of child
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A case where courts are involved where patients cannot make decision alone, not done for therapeutic reasons
Re A (2000) - Conjoined twins, legal entities, and was in best interest to let one die and the other survive.
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What article under HRA 1998 applies to child consent?
Article 8
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What case refers to HRA 1998?
Re (On the pplication of Axon) v Secretary of State for Health (2006)) - Child gains maturity, in terms of making decisions, PR dwindles
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What case refers to HRA 1998?
Glass v UK (2004)
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What were the facts of the Glass case?
Hospital wanted palliative care and refuse resuscitation for dying 12 y/o against mothers wishes. ECHR upheld mothers Article 8 right that resuscitation measures could not be made without consulting the parents and taking their wishes on board.
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Other cards in this set

Card 2

Front

What is the clinical purpose of consent

Back

To gain cooperation of patients

Card 3

Front

What did Re: T (1992) state about consent

Back

Preview of the front of card 3

Card 4

Front

What legal liability may arise if no consent?

Back

Preview of the front of card 4

Card 5

Front

Can consent be overridden?

Back

Preview of the front of card 5
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