International Association for Nursing Ethics Return to IANE Index
STUDENTS' GOPHER
NOTES ON INFORMED CONSENT
IN HEALTH CARE
Geoff Hunt, EIHMS, University of Surrey
1 CONSENT & THE LAW
A patient has a right to withhold or withdraw consent
"Subject to certain exceptions the doctor or health professional and/or health authority may face an action for damages if a patient is examined or treated without consent" (DOH, Informed Consent, 1990)
Consent may be linked to TRESPASS TO THE PERSON (assault or battery).
2 EXPRESS & IMPLIED CONSENT
What is important to the court is evidence of consent: by what patient does, says, or writes. A signature on a form may or may not be accepted as evidence depending on surrounding factors.
The first time patient is approached, advisable to gain express consent, but implied consent will suffice where procedure is a repeat.
3 INFORMED CONSENT
'Consent' which is not based on understanding is not valid consent. Valid consent is that is based on information which:
a) Is given in a form comprehensible to this patient
b) Involves explanation of the nature of the examination or treatment
c) Mentions existence of any alternatives
d) Mentions substantial risks
e) Mentions consequences for life, including medical side-effects
f) But, patient may be advised on prescribed course of action, together with reasons.
4 PROXY CONSENT
Generally, "there is no authority in law, apart from that given to the parent of a minor under 18, where a relative can give a valid consent for a patient." (Dimond, 254)
a) Under 16 & Understands: Consent of a child acceptable if the child fully understands
b) Under 16 & Doesn't Understand: If child does not understand then parental consent should be sought, "save in an emergency where there is not time to obtain it." (DOH)
c) Young people over 16: Parental consent not necessary. "In cases where a child is over age 16 but is not competent to give a valid consent, then the consent of a parent or guardian must be sought. However, such power only extends until that child is 18." (DOH)
d) Parental Refusal for life-saving treatment (E.g. Jehovah’s Witness parent):
"Where time permits, court action may be taken so that consent may be obtained from a judge." (DOH) If this is impossible then witness signs record of discussion with parent, and second medical opinion obtained; then carers "unlikely to be criticised by a court or by their professional body." (DOH)
5 TREATMENT/EXAMINATION WITHOUT CONSENT
Most important situations are these:
a) For life-saving procedures where the patient is unconscious and cannot indicate his or her wishes."
b) "Where there is statutory power requiring the examination of a patient, for example, under the Public Health (Control of Diseases) Act 1984. However, an explanation should be offered and the patient's cooperation should nevertheless be sought."
c) "In certain cases where a minor is ward of court and the court decides that a specific treatment is in the child's best interest."
d) "Treatment for a mental disorder of a patient liable to be detained in hospital under the Mental Health Act 1983."
e) "Treatment for a physical disorder where the patient is incapable of giving consent by reason of mental disorder, and the treatment is in the patient's best interest." (DOH)
6 CONSENT& THE NURSE
“IF THE NURSE ... DOES NOT FEEL THAT SUFFICIENT
INFORMATION HAS BEEN GIVEN IN TERMS READILY
UNDERSTANDABLE TO THE PATIENT ... IT IS FOR HER
TO STATE THIS OPINION AND SEEK TO HAVE THE
SITUATION REMEDIED. THE PRACTITIONER MIGHT
DECIDE NOT TO COOPERATE WITH A PROCEDURE IF
CONVINCED THAT THE DECISION TO AGREE TO IT BEING -
PERFORMED WAS NOT TRULY INFORMED .."
(UKCC, 'Exercising Accountability' 1984, Sec. D.)
In such a situation:
1. Recall the doctor
2. Get Witness statement
3. Make note in Kardex/Ward Diary/Incident Sheet
This statement, which was very direct, has been superseded by statements in the UKCC's 1996 Guidelines for Professional Practice. Here is one extract:
"... Sometimes you may not be responsible for obtaining a patient's or client's consent as, although you are caring for the patient or client, you would not actually be carrying out the procedure. However, you are often best placed to know about the emotions, concerns and views of the patient or client and may be best able to judge what information is needed so that it is understood. With this in mind, you should tell other members of the health care team if you are concerned about the patient's or client's understanding of the procedure or treatment, for example, due to language difficulties." (p. 18 sec.29)
The Guidelines also have a new section on 'Making Concerns Known'. To see that section CLICK here: Nursing concerns