Consent and competence

Introduction

• Failure to obtain consent for an intervention from a competent patient is battery
• Consent is implied in certain situations e.g. rolling up sleeve for injection
• Consent does not need to be written
• A competent patient at all times may refuse or withdraw care even if life saving
• Informed consent must include all serious and relevant risks/benefits and including alternative options
• Substituted judgement of patients wishes by family is 70% accurate

Authority to treat

• Expressed consent by patient
• Not competent to consent and an emergency
• Implied consent
  • Treatment for an emergency with implied consent is legal
  • Emergency defined as condition that will result in unnecessary complications if treatment is delayed
  • Ensure no convincing evidence that patient would have withheld consent
  • There is an obligation to act in the setting of implied consent, otherwise = medical abandonment

Informed consent

• Ethical – Ensures facilitation of autonomous decision making around treatment goals as jointly agreed with the patient
• Legal – Protects patient from assault and clinician from allegation of assault
• Administrative – Documentation serves as proof of a systematic check that the patient received information and agreed to the procedure
• The consent form is the documentation of consent having been obtained and is not equivalent to or a substitute for the consent process
• Written consent is not more valid than verbal consent that is documented, but is easier to prove
• It is appropriate for a doctor to give advice as to the best clinical options and for the reasons for this professional opinion
  • This is expected and desired by patients and is not coercive unless information presented in a manipulative fashion in order to elicit a specific choice

Competence

• Default assumption is that the patient has capacity unless clinical assessment finds otherwise
• Indicators that the patient may not have capacity and may need a more detailed assessment include:
  • Decisions at odds with treatment advice without a rational explanation
  • Decisions that change with no clear justification
  • Decisions taken on the background of failure to understand the discussion around treatment options
• MMSE can be performed as part of assessment but is not all that is required
  • If <20 seriously reconsider if deemed competent
• Assessment of competence should be performed by the doctor proposing the treatment and should not be delegated (although psychiatric opinion may be helpful in complex situations)

• Essential elements to demonstrate competence
  • Ability to maintain and communicate a choice
  • Ability to understand the relevant information
  • Ability to appreciate the situation and its consequences
  • Ability to weigh the information in a rational fashion

• Comprehension
  • What is your present condition? What treatment options have been suggested?
• Belief
  • What do you think is wrong with you?
  • Do you believe that you need treatment?
  • What do you think the treatment will achieve?
  • What do you think will happen if you don’t have treatment?
  • Why has the doctor recommended the treatment?
• Weighing
  • How did you make the decision?
• Choice
  • Have you decided whether to accept or decline treatment options?

Children and adolescents

• In emergency situations
  • If treatment is required and valid consent not obtainable, the steps taken to obtain consent from patient (if deemed competent) or guardian must be clearly documented as well as the reason why treatment was required
  • Document opinion of second clinician also
  • Many hospitals require hospital medical director be informed and give approval
  • Blood product delivery is almost universally legislated to be legally provided if to sustain life despite parents/guardians holding religious belief against this

• Gillick
  • Accepted in Australian common law
  • Some forms of medial treatment (contraception in original case) can be provided to patients under 16 without parental consent or knowledge if the child had sufficient maturity and understanding
• Marion’s case
  • Recognition of the requirement to respect the autonomy and bodily integrity of the individual
• If under 14, generally deemed not competent for medical decision making
• If 14 or over and living independently (difficult to define) AND considered competent 
  • Medical information cannot be supplied to parents without consent from child

Intellectually impaired

• Mild intellectual impairment may meet criteria for capacity
• If not, the Adult Guardian would have to be involved for all but the most urgent cases

Mentally ill

• May be competent but if not then must consider relevant mental health legislation and Guardianship boards
• In an emergency, facts recorded and treatment commenced

Drug or alcohol affected

• Absolute legal position is unclear whether a patient can consent while intoxicated
• Rule is to do whatever would be best for the patient in the long run weighing up risks of harm if discharges against advice vs. risk of being sued for assault and wrongful imprisonment
• Document timely notes and get collateral witnesses to make notes in these cases

Discharge against medical advice

• Incidence 0.5-1%
• Most commonly nausea, vomiting, abdominal pain, non-specific chest pain and alcohol-related mental health disorders
• Rates of unscheduled readmission
  • 4.4% of DAMA
  • 2.6% DNW
  • 0.6% admitted patients
  • 0.1% patients discharged from ED

• Rx
  • Determine reasons for wanting to leave?
    • Always consider drug withdrawal
  • What is the risk to the patient?
  • Is the patient competent to refuse care?
  • Arrange follow-up
  • Encourage to seek care
  • Ask patient to sign DAMA form (witness signature also)
  • If patient refuses to sign, ask another staff member to witness the interaction and write a note
  • Signed DAMA form DOES NOT constitute adequate discussion and must write a note in addition to combat any claims of diminished mental capacity or patient/family not informed

Last Updated on October 6, 2021 by Andrew Crofton