Consent & Vulnerable Consent & Vulnerable AdultsAdults

Aim: To provide an opportunity for Primary Care Staff to explore issues related to consent & vulnerable adults

Learning Outcomes:Learning Outcomes:• Discuss the meaning of consent,

including factors that determine whether or not consent is valid

• Explain the meaning of “capacity” to consent to treatment.

• Be aware of proposed ICP on consent

• Begin to explore legal provisions for treating patients who can not consent

• To explore how issues of consent affect an individual’s practice

• Be aware of where to access additional information

Learning Outcomes: (2)Learning Outcomes: (2)

ConsentConsent

“ Refers to a person giving permission,

expressing willingness to entering into a

voluntary agreement.”

CapacityCapacity

“Relates to the issue of whether a person

is competent to make a decision and if

not, who is able to make a decision to

give treatment.”

Vulnerable AdultVulnerable Adult

“is or maybe on need of community care

by reason of mental or other disability,

age or illness and who is or maybe unable

to take care of his or herself or unable to

protect him or herself against significant

harm or exploitation”

(Law Commission Report 231 1995)

Think about a situation when you were asked toconsent to treatment or to some form of medicalprocedure such as having a blood test.

What factors do you think needed to be presentfor you to have been able to agree to thetreatment or procedure?

Consent – The Facts!Consent – The Facts!

The legal framework of English law states

that:

• No one can give consent on behalf of another adult

• It must be assumed that a person can make their own decisions unless proven otherwise

• It is the responsibility of the treatment provider to make a decision about the persons capacity to consent to treatment.

• It is a criminal offence to treat a person who has not consented

Consent – The Facts! (2)Consent – The Facts! (2)

Factors that determine Factors that determine whether or not consent is whether or not consent is

realreal

• Has the person been given information about the treatment?

• Has the person made the decision of their own free will?

• Has the person sufficient capacity to make the decision?

Scary bit!Scary bit!

• If a patient has capacity to consent & treatment is given in the absence of consent, the patient can bring civil action for “trespass to person” against the person treating him or her

• Additionally, the person carrying out the procedure can be prosecuted under the common law of “assault & battery” or under the offences against the person act 1861!

However!However!

Health professionals & carers caninfluence the following decisions:• Whether a person has / has not the

capacity to give valid consent to the proposed treatment

• Whether the proposed treatment should be carried out under the “best interest” option

Is “Yes” good enough?Is “Yes” good enough?

Vulnerable adults may have:• Lived in an environment where

unquestioning compliance is rewarded• May be susceptible to the influence of

authority figures, such as practitioners• People may always choose the last option

offered• People may always say either “yes” or “no”• They may not know they have a choice in

accepting or declining.

• What happened?

• Who did it involve?

• What did you do?

• What was the outcome?

• Could you have done anything differently?

Draft Mental Incapacity BillDraft Mental Incapacity Bill

The Green paper" Who decides” (1997) and policy statement “Making Decisions” (1999)

Lord Filkin said:

“clear, simple informal system that will ensure people can maintain a maximum level of autonomy”

Key aspectsKey aspects

• Recognition that a person’s capacity to make a decision is dependent on the complexity of the decision and that it may vary from time to time

• A statutory definition of when a person may be regarded as unable to make a decision

• A statuary definition of “best interests”• A requirement that all practical steps be

taken to facilitate decision making• A general authority that makes if lawful

to act on someone's behalf, who lacks capacity, where it is reasonable for the person to do so and is in a persons best interests.

Key aspectsKey aspects (2)(2)

• A new “lasting power of attorney” which covers personal welfare, including medical treatment, as well as property & affairs

• A new “advance decision to refuse treatment”

Key aspects (3)Key aspects (3)

People are unable to make a People are unable to make a decision for themselves if:decision for themselves if:

• They are unable to understand the information relevant to the decision

• They are unable to retain the information

• They are unable to use the information as part of the process of decision making

• They are unable to communicate the decision(whether by talking, using sign language or any other means)

Factors to be considered when Factors to be considered when thinking about acting in a person’s thinking about acting in a person’s

best interestbest interest• Will the person have capacity in relation

to the matter in question at some time in the future?

• The importance of people being permitted and encouraged to participate as fully as possible in acts done for them & decisions made for them

• Have the individual's past & present feelings and wishes been taken into account?

• Have the views of specified person, such as any person engaged in caring for the person, been taken into account?

• Determine whether the procedure can be carried out in a manner less restrictive of the persons freedom

What does this mean for What does this mean for practice?practice?

• Always use a multi-disciplinary approach in all decision making

• Ensure as far as possible that the person is informed of proposed treatment in a manner understandable to them

• Refer to local policies

Record keepingRecord keeping

• Keep clear & concise records of all stages of the process

• Include any disagreement between the clinical team & those close to the person

• Keep records of patients assessment of capacity

• Consent form 4

• Why the health professionals believe treatment to be in best interests

• Involvement of people close to the patient

Record keeping (2)Record keeping (2)