What is consent?
It is the principle that a person must give permission before they receive any type of medical treatment, test or examination. This principle is rooted in the medical ethics pillar of autonomy.
The 3 components of valid consent
1. Voluntary
The decision to give or to withhold consent is made by the patient and must not be influenced by pressure from medical staff, friends or family.
2. Informed
The patient should be presented with all the relevant information to make the decision. This would involve telling the patient about alternative options and the benefits and risks of each one.
The doctor should provide this information without bias and convey this information in a way that the patient finds easy to understand e.g communicating risks in percentages.
3. Capacity
Capacity is not a static concept, it is situation-specific and can be affected by extreme emotions. All adults are presumed to have capacity unless it can be proven otherwise.
When assessing capacity it is important to remember that simply because a patient may have an impairment affecting the function of their mind it does not necessarily mean they lack capacity e.g a dementia patient may still be able to make informed decisions about the care they receive. Capacity is function specific and variable.
In this way, doctors determine whether an impairment is significant enough to limit a patient’s capacity and to test for capacity they use the four requirements below.
The 4 requirements for capacity
Can the patient…
- Understand the information
- Retain it
- Weigh up the pros and cons
- Communicate their decision
When all of the above are fulfilled the patient has capacity at that moment in time, thus they can make a decision/ give consent for treatment.
Even if a doctor does not agree with a patient’s wishes, as long as the patient is informed and has capacity (and the decision is voluntary) their decision must be respected, even if the doctor thinks it’s unwise. Reasonable decision ≠ having capacity and vice versa.
(Note: this only applies for when a patient is refusing treatment, patients cannot demand treatments that would not be in their best interests- this would violate the ethical principle of non-maleficence, as the doctor may be carrying out an unnecessary or potentially harmful procedure.)
What if they don’t have capacity?
There are 3 main options.
Firstly, the patient may have anticipated their eventual loss of capacity (e.g those with progressive illnesses) and may have written an Advanced Directive. This piece of legal documentation was formed when the patient had capacity and specifies the sorts of things that they would and would not consent to. For example, there may be written instructions detailing the refusal of a blood transfusion.
Secondly, the patient may have a health and wellbeing Lasting Power of Attorney- this is someone whom the patient has nominated to make decisions about their care when they lack the capacity to do so.
Finally, if neither of the above are available healthcare professionals would treat the patient in their ‘best interests’ and they may make reasonable steps to seek advice from friends and family too.
How is consent given?
The forms of consent can vary. For example, verbal consent is sufficient for an injection or an examination in a clinic whereas it may be needed in writing before an operation.
As mentioned above there are cases when treatment may be given without consent (e.g if they lack capacity), for example, under the Mental Health Act patients may be given compulsory treatments. Similarly, in emergencies, where it would not be appropriate to wait until the patient regains capacity, decisions regarding the treatment can be made in the patient’s best interest.
Consent in young people and Gillick competence
Children under 16 may be deemed ‘Gillick competent’ (refer to the case below) if they fulfil the four criteria from before.
For example, if a parent refuses to consent to treatment a Gillick competent child can do so, however, if the child cannot give consent the parent’s decision to withhold treatment can be overruled by court in life-threatening situations.
This idea is explored in Ian McEwan’s The Children Act- a great read if you’re interested in this sort of thing 🙂
However, unlike adults, children cannot refuse treatment if a parent or guardian consents to it and it is in line with the view of medical professionals. This is the same for 16-17 year old too.
It is also important to note that the capacity and ability to consent also varies greatly with the situation. For example, a child may be able to consent for a blood test but not an organ transplant.
Remember capacity is function- specific (for what treatment) and it is variable (lower capacity when unwell/ confused/drunk)
The case:
This principle comes from the Gillick case, where a mother, Victoria Gillick sought a declaration that would make it unlawful for a doctor to prescribe contraceptives to her teenage daughters without her knowledge and consent. It was ruled that given her daughters showed the markers of valid consent and they were likely to continue the same actions, providing contraceptives were in their best interests (given there are no child safeguarding concerns) read more at: https://www.mddus.com/resources/publications-library/insight/q1-2018/my-child-my-choice
Here’s a clear outline of consent in children and young people from the NHS website: https://www.nhs.uk/conditions/consent-to-treatment/children/
That’s all you need to know about capacity and consent – weave in elements of this into your MMI interview answers to demonstrate a greater insight and awareness of medical decision making, it’ll make you stand out from the crowd!
Here’s a scenario for you to try out:
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A mother comes into A & E with a child who is bleeding profusely but refuses to allow you to administer a blood transfusion. Why do you think this may be and what would you do?
Hint: Don’t just jump to the assumption that they are Jehovah’s witnesses…
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