Discuss The Importance Of Consent In Health And Social Care

Introduction
This write up is part of assessment for Preparation for Professional Practice module designed to help the student practitioner understand the issues that influence consent by critically reflecting and evaluating the professional, legal and ethical frameworks, for autonomous patient, those that lack capacity and for children. In this discussion, I will include the importance of establishing whether a person has capacity to give consent, what constitutes a valid consent, the various types of consent and the duration of that consent (www.gov.uk).
Definition
Consent is an active process of agreeing to an activity or permitting an activity to occur (O'Shea, 2011). Consent to treatment is the principle that a person must give their
permission before they receive any type of medical treatment or examination. This must be done on the basis of a preliminary explanation by a clinician (www.nhs.uk). Consent historically has been used in medical practice, even by Plato and Hippocrates (Dalla-Vorgia, P et al, 2001), in politics, law and it mostly derived its roots from religion (O'Shea, 2011).
Consent for autonomous patient
The principle of consent is an important part of medical ethics and international human rights law, it reflects the right of patients to determine what happens to their own bodies, according to the human rights act, 1998 Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), and it is a fundamental part of good practice (www.gov.uk) which all Public authorities including NHS trust and healthcare practitioners must act by (www.doh.gov.uk).

However in English law, there is no statute setting out the general principles of consent, but case law (‘common law’) takes precedence in establishing that obtaining valid consent before starting treatment or any physical investigation, or providing personal care, for a person is ethically and professionally right otherwise if the physical intervention results in harm or death then the healthcare professional can be liable for legal action, sued for battery and also could face disciplinary action from their professional body and indeed the employing body can be liable for legal action or have to pay compensation(www.gov.uk).
The Health and Care Professions Council (HCPC) standards of conduct, performance and ethics as well as the guidance on conducts and ethics for students 2012, states that you should always act in the best interests of your Service users and should get informed consent to provide care or services (so far as possible) while also respecting the patient’s decision to refuse treatment whether it seems rational or irrational to the healthcare practitioner or may place the patient’s health or their life at risk, or even indeed if it is a life prolonging treatment as in case of Re B (Adult, refusal of medical treatment) [2002] 2 All ER 449.
Forms of Consent
An autonomous patient can give consent in various forms i.e. Expressed (orally or written), or implied –which is behavioural e.g. a patient voluntarily undresses for examination. The presence of an adult’s signature on the consent form does not equal validity, It becomes valid if it is Voluntary i.e. the decision to either consent or not to consent to treatment was made by the individual, without pressure or any external influence from medical staff, friends or family (www.doh.gov.uk).
If it is informed i.e. the patient was given all of the information relating to the treatment, including the benefits and risks, and whether there are reasonable alternative treatments, the individual must have capacity to make the decision which is judged by ensuring they understand the information they have been given, they are able to retain it, process it and make an informed decision (www.nhs.uk), but for an illiterate patient, a mark on the consent form to be witnessed by another person is sufficient. All the forms of consent are legally acceptable but the written format gives documentary evidence (www.dhsspsni.gov.uk).
However in his submission, O’Neil 2002, pointed out that obtaining informed consent does not necessarily make an individual autonomous, but rather justifies the action of the practitioner.
Consent for children
The Department of Health (DoH) Reference guide to consent for examination or treatment, (2009) refers to people below the age of 16 as ‘children’ and ‘young people’ as aged 16–17.
Children are legally considered to lack the capacity to consent or to refuse treatment as this decision is made for them by someone with a parental responsibility which includes the child’s mother or father, the child’s legally appointed guardian, a person with a residence order concerning the child, a local authority designated to care for the child, or person with an emergency protection order for the child, (www.nhs.uk) although it is considered ethically correct that the practitioner should as much as possible endeavour to involve them in discussions about their care, even if they are not able to make decisions on their own.
In children 16 years or younger, If the healthcare professional has a reason to believe that the child has enough intelligence, competence and understanding to fully appreciate the extent and involvement of their treatment, then they can consent to their own treatment (www.gov.uk, www.gmc-uk.org), in which case they are referred to as ‘Gillick competent’ as a precedent in case law governing consent to treatment (www.ukcen.net), (Gillick v West Norfolk and Wisbech AHA [1986] AC 112) and must comply with the Fraser guidelines, however the issues for practitioners are how do you assess that Fraser guidelines are met?, but the practitioner has to follow the HCPC code and local policy to resolve some of the lingering questions about assessment.
Likewise under the Family Law Reform Act 1969 Section 8(1), 16 & 17 year olds are entitled to consent to their own medical, surgical or dental treatment like adults, but that depends more on their ability to understand and weigh up options, than on their age therefore the healthcare professional has an ethical responsibility and a duty of care to ensure the patient is given as much information that will help them to make an informed decision (www.gov.uk).
However they can be overruled in exceptional circumstances such as may lead to death or severe permanent injury in which case the Mental Capacity Act 2005 has to be invoked and a decision 'in the best interests of the child sought from the court of protection, otherwise their parents, who must also have capacity, can also consent for them to have the treatment, but if the parent refuses to give consent to a particular treatment, or when one person with parental responsibility gives consent while the other does not or both disagrees on what is in the child’s best interest, then the practitioner has to act in the best interest of the patient (www.hcpc-uk.org), by proceeding without parental consent in an emergency where treatment is vital and the child is at risk (www.gov.uk), (www.nhs.uk).
Consent for people who lack capacity The Mental Health Act (1983, amended 2007), The Mental Capacity Act (2005) sets out the process of obtaining consent for this group of people, where a patient lacks capacity, treatment should be provided on the basis of what is in his or her best interests (www.bma.org.uk) although various exceptions exist:
If the patient is 18 or over and lacks the capacity to give consent, by being temporarily incompetent, e.g. unconscious following an accident or acute medical event, consent form 4 (form for adults who lack the capacity to consent to investigation or treatment) is used to obtain consent, but the healthcare practitioner should do no more than necessary i.e. lifesaving treatment only and does not justify treatment contradicting the known wishes of the patient (www.gov.uk/mentalhealth)
When a patient is unlikely ever to be able to make a competent decision about treatment, e.g. severe dementia or learning disability or permanent vegetative state (www.doh.gov.uk), consent must be signed by at least two doctors or specialists and must be in the patients best interests and must include an assessment of capacity.
There are several views as to what constitutes best interest of the patient as argued by Beauchamp and Childress, 2001 that beneficence is one of the four Principles most widely used frameworks to offer a broad consideration of medical ethics issues.
Which means that beneficence may clash with the principle of respect for autonomy when the patient makes a decision that the healthcare professional does not think will benefit the patient – is not in her best interests. As in the case of St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998] 3 All ER 673 and as in case law Re C (Adult, refusal of treatment) [1994] 1 All ER 819 (www.gmc-uk.org) because the mental illness does not call a patient’s capacity into question but under s63 of Mental Health Act 1983 they can be treated without requirement for consent only if the treatment is related to the mental
illness.
In the same vein, a competent adult can make an advance decision to refuse treatment for when they do lose their capacity or appoint someone to make the decision through a Lasting Power of Attorney (LPA) otherwise no one can consent or refuse treatment on behalf of an adult over 18 in England. (www.doh.gov.uk)
Conclusion
Medical consent is ought to be seen as a tool to help patient make an informed decision about their care, by giving them detailed information which can be easily understood and retained, but paternalism is often voiced by physicians such as henri de mondeville who states that “patients should obey their surgeons implicitly in everything appertaining to their cure” (O’shea, 2011). Consent for children under 16 and up to 17 can be very complex, so the practitioner should always act in the best interest of their patient and be a patient advocate (www.gmc-uk.org) by following the regulatory framework, the laws and ethics of their professional code irrespective of the category the patients fall into, regarding consent