Medical Consent

Medical Consent

1. Required whenever a medical professional wishes to touch a patient; major/minor procedures, physical assessments

2. Informed Consent

   • Obtaining consent from a patient before undertaking any medical interventions
   • Institutional policies and civil laws to protect patients. (Funnell, Koutoukidis and Lawrence, 2008), (Crisp et al., 2013)
   • Valid Consent
     • Patient voluntarily give consent without coercion or manipulative impulsions
     • Covers the treatment to be carried out
     • Given by a legally competent person who has been given enough information about the treatment that is to be performed. (Nhmrc.gov.au, 2004)
       • Sufficient information is required. (Crisp et al., 2013)
         • What the procedure entails
         • The expected benefits
         • Common side effects and substantial risks
         • Whether the procedure is routine or experimental
         • Who will preform the procedure
         • Other options for diagnosis and treatment
         • The uncertainty of the diagnosis and any beneficial outcome
         • Long-term effects of not having the diagnostic procedure/treatment
         • Any significant long term physical, emotional, mental, social, sexual, or other outcome associated with the procedure/treatment
         • The time and cost involved including any out of pocket expenses.
       • Patients have a legal right to receive all information
         • Failure to warn a patient of all risks and complications, causing the patient suffering or damage as a result of undergoing the procedure
           • Negligent advice = Tort of negligence. (Crisp et al., 2013)
   • Who can give consent
     • Own self
       • If you are of a comprehensive mind
       • If you are of the legal age of 18+
         • Exceptions
           • Statutory law
             • South Australian Consent to Medical Treatment and Palliative Care Act 1995 (Crisp et al., 2013), (Government of South Australia: Attorney- General's Department, n.d.)
               • Child over the age of 16 can give consent regarding their own medical treatment as authentically and effectually as an adult
           • Common Law Acceptance
             • Department of Health and Community Services (NT) v J.W.B. and S.M.B. (Marion's Case) (1992) (Austlii.edu.au, 1992), (Crisp et al., 2013)
             • Minors (Property and Contracts) Act 1970 No 60. (Crisp et al., 2013), (Minors (Property and Contracts) Act 1970 No 60, n.d.)
               • Under the age of 18 can give consent if:
                 • They understand the treatment and the associated risks
                 • The treatment is in the best interest and wellbeing of the child
     • Consent delegated to another person on behalf of the patient under state and territory legislation
       • Children
       • Mentally Incapable
         • Consent on behalf of an individual may be delegated to:
           • Family Member
           • Spouse
           • Parent
           • Court/ Statutory Authority
             • When the procedure may have significant re-percussions for the patient. (Consent to Medical Treatment - Patient Information, 2005), (Crisp et al., 2013)
       • Unconscious

3. Implied Consent

   • Patient’s actions or lack of actions may indicate their wishes e.g. holding out their arm for their BP to be measured. (Crisp et al., 2013)
   • Forms of Consent
     • Written
       • Required for. (Guide to Informed Decision-making in Healthcare, 2012), (Crisp et al., 2013)
         • All major procedures
         • Procedures with a level of risk
         • Experimental procedures
       • Consent Form
         • Signed and Dated
           • Nurses may have to witness signatures
       • The patient must have a sufficient level of understanding of the procedure and the information associated
     • Verbal
       • Most common form of consent
         • Patient clearly states their consent for the procedure. (Consent to Medical Treatment - Patient Information, 2005)
         • Patient must understand the procedure. (Crisp et al., 2013)
           • Language Barrier
           • Difficulty with terminology
           • Hearing impairment/mental inability
         • Nurse and doctor explain the procedure. (Consent to Medical Treatment - Patient Information, 2005)

4. No Consent

   • Assault and Battery
     • Tort of assault occurs a person experiences a threatening act. (Funnell et al., 2008)
     • Tort of battery is committed by intentionally harming or offensively touching a person. (Crisp et al., 2013)
     • Civil Law tort- ‘Trespass to the person’, keeps individual free of unconsented touching. (Crisp et al., 2013)
       • Protect a patient’s individual space
       • Deliver compensation when the patient’s personal space is violated. (Crisp et al., 2013)
   • Revoked Consent
     • Patients have the right to refuse treatment at any time
       • If the patient is of legal age and a sound mind, they are perfectly entitled to refuse treatment.
       • Can be revoked at any time. (Crisp et al., 2013)
         • Verbal
         • Alternative consent form
         • Amended on original consent form
   • Certain statutory provisions
     • Such as the Human Tissue Act 1985 (Tas), s.21. (Crisp et al., 2013), (Thelaw.tas.gov.au, 1985)
       • Allows medical practitioners to overrule a parent’s wishes if it is believed to be in the best interest of the child
   • Patients who wish to die with dignity
     • Refusing treatment because of seeking an alternative form of treatment
       • Medical management rather than surgical management
       • Palliative care
       • Patients must understand the nature and consequences of this decision. (Crisp et al., 2013)
   • No Cardiopulmonary resuscitation (No CPR) orders
   • Emergency situations
     • Medical practitioner is entitled to carry out medical procedures in a situation where the individual is temporarily unable to consent in order to save their life and prevent any serious damage
       • Common law and statutory exceptions
         • Children and Young Persons (Care and Protection) Act 1998 No 157 (s174). (Children and Young Persons (Care and Protection) Act 199, 1998)
           • No consent is required from a child or parent if the treatment is deemed life-saving and it is a matter of urgency in order to prevent serious damage to health

5. Organ Donation. (Donatelife.gov.au, n.d.)

   • Patient records intent of organ/tissue donation with the Australian Organ Donor Register
     • Set under Human Tissue Act 1985 (Tas) (Thelaw.tas.gov.au, 1985)

6. Uncertain Consent

   • Patients who have not considered death due to a sudden accident
   • Patients who are no longer mentally capable
   • Patients who are unable to respond (Comatose)