LO: Describe the medico-legal position concerning consent in adults and in children, in both emergency and non-emergency situations and how mental capacity may affect this

Battery

• Wrong operation - incorrect site
• Unnecessary treatment - not clinically indicated
• Ignoring consent withdrawal
• Ignoring a specific prohibition against treatment - advanced decision

Competence

• Competent adult has the right to refuse medical treatment regardless of the consequences that may follow from the refusal

Valid consent

• Must have capacity
• Appropriately informed
• Given voluntarily - not under any influence
• Consent is a process not just completion

Capacity

PLUMB - MCA guiding principles

1. Is the patient suffering from an impairment in the mind or brain
2. Does that make the person unable to make a decision for themself at the time

Functional test

• Understand information related to the decision
• Retain information
• Use/weigh up the information as part of the process of making the decision
• Communicate the decision

Best interests

• Document how the decision was reached
• The reasons for reaching it
• Who was consulted
• What factors were accounted
• Second opinion/Ethics committee/IMCA
• Court declaration

Material risk

• Would a reasonable person in the patient's position attach significance to the information

• Consider effect on patient

• Importance to the patient of the benefits/desire to have treatment

• Alternative treatments

• Risks associated with alternative

• Reasonable alternatives

• Must know about procedure

• Accepted practice

• Appropriate option, not a possible option

• Not a variant of current treatment

Withholding information

• When patient says they do not want to know
• If disclosing would be seriously detrimental to patient's health
• Necessity - emergency and patient is unconscious

Treatment without consent

• May be justified by common law doctrine of necessity
• Emergencies
• Not practical to communicate with patient and treatment is necessary
• Patient's best interests
• Document the decision

Children

• Can consent to treatment - if they have capacity
• Lack capacity - need consent of person with parental responsibility or the Court
• Emergency treatment without consent in order to save the child's life
• At 16, it is legally presumed young people have the ability to make decision about their own care

Under 16

Gillick

• Parental right yields to the child's right to make own decisions when reaching a sufficient understanding and intelligence to be capable of making up their mind on the matter requiring decision
• Child does not have the right to refuse treatment
• People with parental responsibility or the Court can override refusal
• Disputes about treatment must be referred to the Court