Consent and capacity
“A doctor, who operates without the consent of his patient, save in cases of emergency or mental disability, is guilty of the civil wrong of trespass to the person; he is also guilty of the criminal offence of assault.”(Lord Scarman, Sidaway V. Board of Governors (1985)). When considering Euthanasia, one must take in to account the capacity of the patient to consent to any treatment that is given. All treatment in medicine must be consented to before it is administered. Examples of valid consent could be verbally implied or even a gesture by the patient that infers consent. When giving injections consent is simply a patient holding out their arm.
Valid consent has three elements associated with it as noted by Samanta (2015). The first element is competency of the patient to give consent. A patient who is not seen as competent is not able to provide valid consent to treatment. A competent person is able to make decisions for one’s self under The Mental Capacity Act (2005). Part of this touches upon when a person lacks capacity to make a decision. It states that ‘a person lacks capacity in relation to a matter if at material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain’. (Mental capacity Act section 2(1)). People with mental disorders are often seen as unable to make their own decisions. The incapacity to give consent from a mental disorder must be assessed in these things:
‘’1. a mental disorder should not prevent a patient from understanding what s/he consents to;
2. A mental disorder should not prevent a patient from choosing decisively for/against the intervention;
3. A mental disorder should not prevent a patient from communicating his/her consent (presuming that at least reasonable steps have been taken to understand the patient’s communication if present at all), and
4. A mental disorder should not prevent a patient from accepting the need for a medical intervention.’’ (Braddock (1997) p339)
Secondly a person must have been given sufficient information to be able to reach that decision with all the options talked through and considered. In relation to a medical decision this could involve whether a patient should choose to have an operation or not. In this case the doctor’s job would be to sit down and discuss what can be done to treat the patient. For example, if we take a patient who has a condition where surgery could be used to get rid of an infection or antibiotics could be used to try and clear up the infection. The doctor would have to discuss the options to the patient. In this case the surgery would clear the infection completely but would have a certain amount of risk involved with the surgery. On the other hand, the antibiotics will hopefully clear the infection but may not work fully and a risk of it coming back but worse. Also, side effects of the antibiotics must be discussed with the patients and how serious the risk of surgery is. After giving all the relevant information, the patient is now seen as having the capacity to make consent to the treatment.
The final element of valid consent if that the patient must act voluntarily and without duress or coercion (Samanta (2015)). Any act that is performed with the intension to persuade against or for treatment is considered coercive. This could include threats or persuasion from anyone. In medicine, it is difficult to give an option without coercion. This is because to act in a patient’s best interest a doctor would want to advise the best treatment to the patient and convince them that is the best treatment. As consent needs to be without coercion this is not allowed in practice. All options must be talked about and only statistics are allowed to be used for example a doctor may say that a treatment will work around 8 out of 10 of the times and let the patient make their own decisions.
To ensure consent is valid in practice other than the three elements discussed above. Additional acts must be made. The procedure to acquire this consent must be carried out in a specific and ordered way. First a discussion about the patient’s role in the process is needed to be had. Other discussions are required including clinical issues and treatment, alternative treatments, risks of discussed treatments, uncertainties, the patients understanding of options and finally the patient’s preference and final consent (Levinson W, et al (1997)). An example of a piece of consent is known as a DNAR form. DNAR or DNACPR stands for ‘Do Not Attempt Resuscitation’
When practicing medical practice, it can sometimes be a tedious process to assess the capacity of a patient to give consent and to obtain this consent, but it is an essential part of a doctor’s job. Legal arguments can sometimes follow treatment if a patient or patient’s family do not agree with what has happened, but if a doctor has acted by the law and has valid consent then they are protected. This is why it is essential not only for health care professionals not just to know the science behind their jobs but also to know the up to date law and ethics involved with protecting themselves from legal actions.