Ethical, Legal and Professional Issues Related to Obtaining Informed Consent

This scenario-based assignment sets out to analyse the ethical, legal and professional issues relevant to obtaining consent in adults. Consent is a fundamental ethical and legal principle that underpins the healthcare process.

Ann is a 78-year-old female admitted with a life-threatening perforated gallbladder requiring emergency surgery. She is hesitant to consent as she is anxious and in significant pain.

Consent is the agreement by a competent person, voluntarily without duress, to an action that without consent would be trespass. Therefore, mentally competent individuals have the autonomous right over their decisions regarding their health. The legal age to consent to medical procedures is 16 and does not diminish with age.

Healthcare professionals must obtain consent before any procedure or intervention or they are liable to legal action by the patient or their regulatory body for trespass, battery or assault. Similarly, a patient who can show that they did not consent may bring a claim of trespass as it is a breach of their right to autonomy (Stauch, 1998). Professional duty to obtain consent is highlighted by the Nursing and Midwifery Council (NMC, 2018) stating that nurses must gain consent before performing procedures, stipulating that patients must be informed of the risks of the procedure. However, consent is a fluid process and can be withdrawn at any time.

There are different types of consent in healthcare settings encompassing three forms. Verbal consent occurs daily as the basis for performing routine care (Dimond, 2001). Non-verbal consent relates to the behaviour of the patient which indicates that the patient is agreeing to the proposed treatment. Written consent namely, the best form of consent is evidence that the patient agreed to the procedure and thereby required for surgery (Dimond, 2001). The signing of a consent form does not alone ensure valid consent but represents a discussion whereby the patient agreed to what was explained to them. Where written consent is sought it may be appropriate for other team members to participate in the process of seeking consent.

All adults must be assumed to have mental capacity and therefore, are entitled to the autonomous control over their person, unless otherwise determined. Whereby health professionals question a patient’s capacity they must adhere to the guidance outlined by The Mental Capacity Act. It ensures no superficial assumptions are made based on the individual's age, appearance or based on a condition or aspect of behaviour while protecting and empowering the individual (Dimond, 2007). Secondly, MCA (2005) states that a person is unable to make decisions for themselves if they are unable to; understand the information relevant to the decision, retain that information, balance that information and communicate their decision. The NMC Code (2018) stipulates the need for nurses to have adequate knowledge of MCA (2005) in their practising country to uphold the rights and best interests of their patients. As Ann has capacity it is the healthcare professional’s ethical duty to respect individual autonomy. This is reiterated by ReC (1994) that due to his mental health history the hospital contended that C’s capacity had been impaired however, the patient was deemed mentally competent by law.

Gillon (1985) contends that consent to medical intervention is by definition informed consent because it requires action based on adequate information to make a balanced decision. For consent to be valid, and thus the surgery to be lawful, three conditions must be satisfied: the patient must be competent, under no duress or undue influence; and the patient must be appropriately informed about the proposed treatment. The Montgomery ruling (2015) makes it clear all interventions must be based on a shared decision-making process involving the patient and healthcare professionals, to ensure the patient is aware of all options and supported to make an informed choice. Ann has not refused treatment; she is asking for further communication to take place to make a balanced decision in her best interests. Therefore, effective communication between Ann and those responsible for her care in the presence of her daughter must take place. However, a competent adult patient has the right to accept or refuse treatment even if refusal could lead to their death which the NMC (2018) states must be shown personal consideration and respect. The nurse in charge of Ann’s care could facilitate this meeting ensuring they have privacy to discuss the surgery including the risks and benefits or potential alternatives.

Physicians remain the gatekeepers of information but are not always engaged with the patient, often the relationship is technical and may become insensitive to the needs of patients and their families. When deciding on what information to provide, the Bolam principle should be employed, which has further been refined by the Montgomery judgement. Therefore, nurses are well placed to advocate taking on the role of communicator and translator to assist the patient understand what has been discussed. The nurse in charge of Ann’s care can answer questions she may have about the procedure and can help Ann work through her initial shock and fear about major surgery. The NMC Code (2018) states that nurses must safeguard the interests of individual patients.

Informed consent for surgery is often obtained by junior doctors during assessment clinics, or on the day of surgery. A thorough understanding is required to be able to appropriately advise the patient of the potential risk of the proposed surgery which junior doctors may lack. To ensure the patient is adequately informed the DoH (2001) consent forms came into circulation. Its format includes sections for documentation of the intended benefits and serious or frequently occurring risks which should be discussed with the patient. Any alternative options should be explained, putting them in context by highlighting the risks and benefits compared to the proposed procedure. However, long-term alternatives may be limited in Ann’s case due to the life-threatening nature of the perforation if it is not corrected.

Clinicians should be aware of the potential influence of family and healthcare workers can have on a patient’s decision. As far as reasonably possible, the clinician should establish that any decision made is that of their patient. This would ensure the nurse is advocating for their patient upholding autonomy and self-determination (Gerber, 2018). Ann may feel like a burden to her daughter and their family as she is used to her independence and living alone but should not feel pressured to make a decision. As time is of the essence in Ann’s case healthcare professionals could potentially coerce Ann into receiving treatment she may not want.

The nurse could explain to Ann what will happen post-operatively and try to reassure her and the steps they can take to work towards getting her back to baseline. Ann is also in significant pain, adequate pain evaluation, identification and control are fundamental roles of nurses (Romero and Araujo, 2015). Pain may further exacerbate her anxiety and reluctance to consent to the procedure. The nurse could provide Ann with sufficient pain relief before the discussion with the consultant. However, this may not be fully controlled until the root cause is treated and this must be explained to Ann. Significant pain if not controlled may further impact Ann’s ability to make an informed decision.

Ann's decision may be influenced by how she views the consequences of the procedure. This view may change due to a change in her social circumstances as she may want to be more involved in her children and grandchildren’s lives. Pandemics can have a significant psychosocial impact especially for the elderly including health anxiety, depression and insomnia. Ann appears to be overwhelmed by her condition, this may prevent her from comprehending information, especially when coupled with the potential for information overload when meeting with several healthcare professionals during her stay.

With a perforated gallbladder, Ann's condition without treatment will deteriorate. The urgency of the situation may limit the quantity of information that they can be given but should not affect its quality. In the case of a clinical emergency, if it is not possible to find out a patient's wishes, treatment can be provided without consent, provided the treatment is immediately necessary to save their life or to prevent deterioration. Therefore, as Ann deteriorates, she may not have the capacity to make an informed decision about her care or consent to the procedure. In this instance, the professionals involved in her care must act within her best interests.

Best interests are not given a statutory meaning, but certain steps have to be taken to decide what are the person's best interests. All actions and decisions taken by practitioners or their attorneys must be done in the person's best interests. The NMC Code (2018) states the professional must balance the need to act in the best interests at all times. In determining the patient’s wishes, the decision-maker is required to take into account, if appropriate to consult the views of anyone named by the person or anyone engaged in caring for the person or interested in their welfare (Dimond, 2007). In Ann's case, this may include her daughter. Adults have the right to say in advance that they want to refuse treatment if they lose capacity in the future through advanced decisions. Within Northern Ireland there are currently no statutory provisions for advance decisions to refuse treatment however, it must be taken into consideration.

Consent is a complex topic that has the potential to vary according to individual cases. It is important to respect the autonomy of the competent individual and where this cannot be maintained to work in the individual’s best interest while upholding ethical and professional boundaries.