Chapter 16 Consent and the perioperative patient

Christine Hughes

SUMMARY

This chapter will cover:

• an overview of the legal framework for consent

• a good practice approach to consent in the surgical patient

• implications for consenting adults and children

• the role that advanced practitioners can play in the consent process.

INTRODUCTION

This chapter discusses the legalities of obtaining informed consent to invasive procedures in the adult, child, unconscious and mentally incapacitated patient. Refusal and withdrawal of consent from a legal stance is also addressed. The process of gaining consent is discussed and the use of procedure-specific consent forms, which inform the patient of common yet significant risks associated with the planned procedure. The provision of information is acknowledged as being a vital aspect of the consent process and one in which professionals can have input with the patient and family.

The chapter concludes with a discussion of the developing role of advanced practitioners who may be involved in the consent process as part of their role in the management of the perioperative patient and aspects of training required for non-medical consent takers.

To give one’s consent can be defined as to ‘agree’, ‘allow’, or ‘give permission’.¹ In relation to consent to intervention within the healthcare setting, consent to treatment or procedure involves a process of ensuring that the patient is equipped to make an informed decision regarding treatment and is provided with the relevant information to do so. The aim of the consent process is that the patient develops an understanding of the benefits, risks and any alternative treatments to the proposed procedure in order that valid consent can be deemed to have been obtained.

We discuss below some of the complicated issues surrounding the process of obtaining consent for health professionals across the multi-disciplinary team including doctors, nurses and allied professionals during their daily interaction with patients,. Consent can be implied, given verbally or written – all of equal importance within the process. The legal aspects of gaining consent from the adult, child, unconscious and mentally incapacitated patient will be discussed with regard to the capacity of the individual to understand and consequently ensure that consent is valid.

Refusal and withdrawal of consent to intervention can pose difficult dilemmas for healthcare professionals in ensuring a satisfactory outcome for the patient. Healthcare professionals face challenges as to how to act in patients’ best interest while ensuring that their rights to refuse or withdraw consent are met. Legal decisions can appear complicated and confusing.

Consent can also be seen as a process of providing information and gaining patient understanding of that information – a well-informed patient is able to make important decisions regarding their treatment. Patients today are often more informed about their illness than traditionally has been the case because of an increase in media attention as well as the availability of information, especially on the Internet, which is accessible to a wide range of individuals.

The use of procedure-specific consent forms may help to reduce subjectivity and variance in discussion of risks with the patient. In conjunction with these issues. The changing roles of the extended practitioner within the nursing sphere will be debated in relation to the consent process and provision of patient information, as will training requirements for non-medical consent takers.

Legal aspects

The mentally competent adult (aged 18 or over) has a right to give consent prior to any touch of his person within present common or civil law of the land.2 This is a set of principles applied across the country which recognise an individual’s right to protect their body against invasion by another person.

It is vital that consent is valid; in order to be valid the patient must be empowered to make an autonomous decision about their health and lifestyle.³

Consent to intervention may be implied non-verbally or given verbally, which is what happens in everyday practice. It is not always necessary or indeed realistic to gain written consent to every physical intervention carried out by the healthcare professional. However, any form of consent should be recorded within patient documentation.

The patient must be mentally able and correctly informed by a suitably competent and knowledgeable person regarding the procedure. The consent must be given voluntarily, not being subject to coercion or influence of others. Therefore, the professional must first ascertain when seeking consent that the patient has the capacity to understand and retain the information. At this point, consideration must be given to the fact that patients’ decisions can be affected by stress, illness and medication²^,⁴ and the patient may understandably be nervous and fearful.

If a person is touched without implicit consent, or without any lawful means of ascertaining consent, he has the right of civil or criminal action as trespass to himself may have occurred. This may amount to battery or trespass in the law courts – when the person is actually touched. A case of assault may be brought if he believes he will be touched without consent.2

Although the patient may imply or give verbal consent to a variety of daily interventions there may be significant risks associated with a more invasive procedure such as surgical intervention, for which written consent should be sought.⁵ The Department of Health states that consent can be implied⁶ for example, when a patient holds their arm out for a blood sample to be taken. However, it remains pertinent that health professionals provide information to the patient and seek permission prior to proceeding with any invasive procedure. The patient and the professional may have conflicting perceptions as to the nature of the planned intervention.

It is important not to dismiss the need to gain consent for what often appears to the health professional as a routine procedure, such as inserting a urinary catheter. Assumptions should not be made that the patient gives permission for any intervention to take place on their person. The patient has a right to information and to question why any intervention is to be carried out and to information and explanation regarding any of the associated risks.

The General Medical Council⁷ warns that care should be taken by the practitioner in relying on implied consent. For example, a patient may be lying on an examination couch in a clinic, but this does not mean that the patient understands what the healthcare professional proposes to do or why, nor does it mean that they give consent to the professional’s planned intervention. Therefore the professional must be aware that implied consent is not given solely by the patient arriving at the hospital.²

The unconscious patient

The unconscious patient may be treated by necessity. In this situation common law recognises that the professional must act in the best interest of the patient in relation to the standard and duty of care accepted within the profession. This is not implied consent, it is a necessity,² as the unconscious patient is not able to imply anything. The professional must, therefore, be able to defend their actions. It is wise to discuss the management and risks of a procedure with a relative or close friend if possible, in order to ascertain any details which may affect clinical judgement, even though these persons are unable to give consent for another.⁸

Written consent

Although it is accepted that implied or verbal consent is acceptable for many everyday interventions, written consent is, without doubt, superior to a verbal agreement which can later be refuted, as there is often no documented evidence of a conversation taking place. Word of mouth can be much more difficult to prove in a court of law and is therefore unreliable and open to dispute.²

Consider the example in Box 16.1.

Box 16.1 Example 1

Janet is a 43-year-old woman who is admitted to theatre for repair of epigastric hernia and removal of lesion on right cheek under general anaesthetic. After anaesthesia was administered the patient was taken into the Theatre area where it was noted by the Theatre Sister that the consent form stated epigastric hernia repair but omitted to indicate removal of lesion on cheek – although this additional procedure was written on the operating theatre list. The Senior Registrar insisted that he had discussed removal of the lesion with the patient on the ward preoperatively but had inadvertently omitted to write this on the consent form. What could be the outcome of this situation if removal of the lesion had been carried out?

Janet may have denied that the discussion with the Registrar took place. If she subsequently suffered a complication such as scarring or infection, she might deny any prior discussion or understanding of the associated risks. Although this type of situation is uncomfortable for the professional who is then often at the mercy of a disappointed or angry patient, any invasive procedure such as surgery should not be carried out without appropriate attention to the consent process unless in a life or death situation where action in the patient’s best interests could be justified.

Although it is rarely a requirement of law that written consent is obtained, it is recognised as best practice to obtain patients’ signatures when planning to carry out invasive procedures,5 including the following interventions:

• general anaesthetic, regional anaesthesia or sedation

• a complex procedure in which significant risks apply, such as surgical procedures

• intervention which may have consequences for future lifestyle, social life, employment or quality of life.

A signature on a consent form is evidence that the patient has given consent, but it is not proof of valid consent.⁶ Therefore, validity may be questioned if the patient did not give consent voluntarily or was not provided with adequate information to make an informed decision.

Should there be dispute regarding consent, a court of law may ask whether the ‘reasonable’ patient would have given consent had they been aware of the risks. The law may view absence of documented proof of information provided and discussion of associated risks as a failure in the practitioner’s duty of care.⁸

Refusal and withdrawal of consent

If a patient refuses to consent to treatment, they have every right to do so.² However, the health professional should seek to ascertain the patient’s reasoning for this decision and discuss the implications of refusal or withdrawal of intervention, providing support and information to ensure that the patient has based their decision on correct information and understands the possible implications of their actions.

Refusal of any treatment or intervention should be clearly documented in the patient’s notes. The patient’s autonomy must be respected – it is an individual’s right to decide, even if the outcome may cause harm to themselves.7 There are no statutory powers which force an individual who is mentally competent to receive intervention against their will, which can be a dilemma for medical staff when issues of this nature arise, for example, pertaining to the pregnant woman. A woman who is mentally competent but refuses intervention for reasons such as religious grounds or even irrational reasons may not be overruled by the courts – even if her actions result in death or disability of infant.² Being of sound mind and maturity still remains the general principle.⁸ However, if the patient is deemed mentally incapacitated in some way, intervention may then be declared by the law court under the Mental Health Act 1983.²

Box 16.2 Example 2

A pregnant woman who refused treatment for pre-eclampsia was detained under Section 2 of the Mental Health Act 1983. The High Court declared that a caesarean section should be carried out. This procedure subsequently went ahead. The woman then claimed at the Court of Appeal that she was wrongly detained under the Mental Health Act and therefore the caesarean section should not have been carried out against her will. She won her case.

Guidelines were subsequently produced to check the validity of patients’ refusal of intervention and steps to check mental capacity and ability to make informed decisions, free from coercion and influence.²

It is accepted that when a patient gives valid consent, this is valid indefinitely unless withdrawn by the patient; therefore, no specific time limit is designated from signature to procedure.⁶ However, it is good practice to confirm the patient’s wishes if significant time has lapsed since the initial process. The patient is entitled to withdraw consent at any time both before and during a procedure. If withdrawal of consent during a procedure would pose a significant risk to the life of the patient, then the practitioner may be justified in continuing until the immediate risk is no longer applicable.⁶

Children and young persons

Children under the age of 16 are now able to give consent if they have sufficient comprehension of what is proposed; this is known as Gillick competent – if the professional concludes during discussion that the child has the capacity to make decisions and has sufficient understanding of the proposed treatment. It is good practice to involve family members in these discussions if possible so as to aid understanding and informed decision-making. If the individual lacks capacity to consent, the parent or person with parental responsibility may give consent on the child’s behalf.6

However, if the Gillick competent child objects to treatment, the parent or person with parental responsibility or indeed the Court may be a sufficient authority to act against the child’s wishes.⁹ The refusal to give consent by a minor can be very complex. Although refusal may be overruled by those with parental responsibility or by the Court of Law, consideration of the psychological and physical welfare of the child must be deliberated over as a basis for this decision⁶ and should be given careful consideration, especially if the child is older, more mature, capable of fully understanding the implications⁹ and therefore making decisions.

A person aged 16 or 17 is entitled to give their consent as an adult would, and as indicated in Section 8[1] Family Law Act 1969.¹⁰ Refusal by a 16- or 17-year-old can be overridden by a Court of Law; in this instance it may be appropriate to use the Mental Health Act 1983.⁹

Box 16.3 Example 3

A 16-year-old girl who suffered from anorexia nervosa refused all treatment despite a severe deterioration in her condition. The Court of Appeal ruled that she be treated in a specialist unit against her will under the Mental Health Act 1983. They deemed that the disease process destroys the ability to make an informed decision.⁸

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