Law Revision Quiz

Consent, Capacity and Refusal in Adults

• Acting without consent can lead to criminal offence (assault and battery) or civil action from patient (claim for damages).
• Exceptions to Consent → emergency (no time, hence act in patients best interests), implied (through patient’s actions), waiver (patient doesn’t want to hear details, just start treatment), best interests (if not possible to gain consent or patient lacks capacity, doctor acts in best interests of patient).
• Need to be competent to give valid consent → understand information, retain information, use information, communicate decision. Competence is decision-specific. Adults (16+) assumed to be competent unless evidence suggests otherwise. Children (<16) assumed to lack competence unless evidence suggests otherwise. Consent must be given without coercion.

The Mental Capacity Act

• Lasting Power of Attorney (LPA) → any adult can appoint provided they have capacity. Registered with court of protection. LPA involved in final decision-making, personal decision-making, welfare decision-making including consent to treatment, refusal of life-sustaining treatment. All decisions made by LPA must be in the best interests of the patient and can be contested. Can only make decisions once patient has lost capacity.

• Independent Mental Capacity Advocate (IMCA) → if person lacking capacity has no one to support them, IMCA should be appointed. Involved in decisions relating to serious medical treatment (unless urgent), proposals to move a patient into long-term care, plans to move a patient into a different hospital/care home. Should attempt to ascertain patient’s beliefs, feelings and values and advocate on their behalf.

• Advanced Decisions → take precedence over LPA (unless LPA was appointed after AD was made). Best interests do not apply. ADs can only refuse treatment, not request it. Only exception = cannot make an advance decision to refuse treatment under the mental health act. Only valid when individual loses capacity, refer to specific treatment in specific circumstance.

  • Cannot Refuse → basic nursing care, hydration and oral feeding.
  • Invalid If → competent withdrawal, LPA appointed after AD was written, patient acted in way that is inconsistent with AD (suggesting they have changed their mind).
  • Inapplicable If → significant change in circumstance not addressed previously (eg. pregnancy), significant change in prognosis/treatment of condition since AD made (eg. AD long time ago and new treatments available).
  • ADs to refuse life-sustaining treatment must → be signed and in writing, be witnessed and signed by witness, specifically stated decision has to be respected even if life at risk. (Other advance decisions may be made verbally, except life sustaining treatment)

  Withdrawal of AD can be oral and withdrawn at any time provided patient is still competent. Once patient loses competence, AD cannon be withdrawn.

• Mental Health Act 1983 → advance directives can be overridden if the patient is subject to compulsory treatment under the MHA 1983. Treatments for mental health disorders cannot be refused by an advance directive.

Children and the Law

• People who have Parental Responsibility → both parents (if married, or both names on birth certificate), mother only (if unmarried or no agreement with father), legally appointed guardian, local authority with a care or protection order.
• Consent for Children → 16 is age of consent to medical treatment (parental responsibility ends at 18). For children <16, if more than one person with parental responsibility, only consent from one is necessary. If parental disagreement, a court order is recommended. In emergency, with no parental responsibility to consult, treatment can be given without consent if in best interests of patients.
• Gillick Competence → under certain circumstances, a doctor can obtain permission to treat a child without consulting a parent. Allows minors to accept treatment, but they cannot decline treatment that is in their best interest (unlike >18s who can refuse life saving treatment). No lower age limit to gillick competence.
  • Criteria ⇒ ask patient whether you can tell parents, if yes then the child can be treated like any other child with parental permission, if no then confidentiality must be respected. Assess how mature child is, do they understand treatment and complications? If these criteria fulfilled and patient is likely to suffer physical or metnal harm without treatment they can be considered gillick competent.
  • If child is refusing treatment, ask parents for consent, and then ask the court.
• If 16 or 17, if child refuses treatment, can still be given with court order.

Confidentiality