New Doctor - Medical Protection Society

8
MEDICOETHICAL FEATURE
NEW DOCTOR | VOLUME 5 | ISSUE 2 | 2012 | UNITED KINGDOM www.mps.org.uk
apply to anyone aged 18 or over
who suffers from a mental disorder
or disability of the mind, and who
lacks the capacity to give informed
consent to the arrangements made
for their care and/or treatment. The
safeguards are designed to:
■ ■ Ensure people can be given
the care they need in the least
restrictive regimes
■ ■ Prevent arbitrary decisions that
deprive vulnerable people of their
liberty.
Elderly patients
It shouldn’t be assumed that people are
not able to make their own decisions,
simply because of their age or frailty. 4
As patients get older, there is a
temptation to believe that they have
decreased capacity to take decisions
about their treatment. However,
you should always work on the
assumption that capacity to give
consent for treatment exists, unless
it is proven otherwise.
End of life decisions
Before people lose the capacity to
consent to treatment, particularly as
a result of a progressive condition,
they may make an advance decision
(AD) or directive (or living will). If the
statement was made by a competent
adult, and there is no reason to
believe that they have changed their
mind, it should be respected.
The MCA provides some protection
for doctors dealing with advance
decisions. In particular, it provides
a safeguard for doctors acting on
advance decisions. You will not be
held liable if you:
■ ■Are
in doubt over whether there is
an AD and provide treatment
■ ■ Believe a valid and applicable AD
exists and withhold or withdraw
treatment.
Where there is doubt, the courts will
decide whether an AD exists and
whether it is valid and applicable to
treatment. Until the court decides,
nothing should prevent the provision
of life-sustaining treatment, or
anything believed to be necessary to
prevent a serious deterioration in the
patient’s condition. ADs (or directives)
are governed by common law rather
than by legislation in Scotland and
Northern Ireland.
REFERENCES
Children and young people
In England and Wales, anyone aged
18 and over is assumed to be a
competent adult and can give their
consent. In Scotland, the legal age
of capacity is 16. Young people aged
16-17 are usually treated as if they
are adults in that they are usually
assumed to be competent. However,
if they refuse a treatment, this can be
overridden either by someone with
parental responsibility or the courts.
In patients under the age of 16, it
is for the doctor to decide whether a
child has reached a suitable level of
maturity and understanding. Children
under 16 are often competent and in
the case of Gillick v West Norfolk and
Wisbech Area Health Authority (1985)
it was found that a parent’s right to
consent to treatment on behalf of a
child ends when the child has sufficient
intelligence and understanding to
consent to the treatment themselves,
ie, when the child is “Gillick competent”.
If children under 16 refuse a
treatment, this can be overridden by
someone with parental responsibility
or the courts. However, when there
is a difference of opinion between the
young person and their parents, this
is usually resolved within the family.
If there is no need for an immediate
decision, it is clearly preferable to delay
a decision until this can be resolved.
The treatment of young children
can be a contentious issue and it is
important to seek guidance from your
senior or MPS.
Parental responsibility
For young children who are not
competent to give their consent,
someone with parental responsibility
can give consent on their behalf. The
mother automatically has parental
responsibility unless she lacks capacity
herself. A father will have responsibility if:
■ ■ He is married to the mother of his
child (or was at the time of birth)
■ ■ He has made a parental responsibility
agreement with the mother
■ ■ He has obtained a court order
granting him parental responsibility
■ ■The
child was born after 15
April 2002 in Northern Ireland, 1
December 2003 in England or
Wales, or 4 May 2006 in Scotland
and the father is named on the
child’s birth certificate.
1. Chester v Afshar, UKHL 41 Pt 2 (2004)
2. GMC, Consent: Patients and Doctors Making Decisions Together (2008)
– www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp
3. MCA, Code of Practice (2005) – www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act
4. DH, Seeking Consent: Working with Older People (2001) – www.dh.gov.uk/en/index.htm
5. Ibid 2.
WHAT PATIENTS SHOULD BE TOLD
■ ■ All details of the diagnosis, and
prognosis, and the likely prognosis if
the condition is left untreated
■ ■ Any uncertainties about the diagnosis,
including options for further
investigation prior to treatment
■ ■ All options for treatment or
management of their condition,
including the option not to treat
■ ■ The purpose of a proposed
investigation or treatment; details of
the procedures or therapies involved
■ ■ Explanations of the likely benefits and
the probabilities of success for each
option; and discussion of any serious
or frequently occurring risks
■ ■ Advice about whether a proposed
treatment is experimental
■ ■ How and when the patient’s
condition, and any side effects, will be
monitored or reassessed
■ ■ A reminder that they can change their
minds about a decision at any time.
■ ■ A reminder that they have a right to
seek a second opinion.
USEFUL LINKS
MPS has produced factsheets and
booklets on the following topics. Visit:
www.medicalprotection.org/uk/
factsheets
LOOKING FOR EVIDENCE FOR
YOUR ePORTFOLIO?
MPS is committed to education and
training. As well as helping you provide
the best care for your patients, we want
to support your development. That is
why we have developed two online
learning modules on the topic covered
in this article, so that you can download
a certificate of completion as evidence
of your learning for your ePortfolio.
What to do next….
■ ■ Once you’ve read this article, simply
go to www.mps.org.uk/e-portfolio
where you can register for the
E-learning platform
■ ■ You’ll need your membership details
to register and log on
■ ■ Once logged on, you will be able
to access the consent modules
highlighted on the home page
■ ■ You can complete the modules at a
time that suits you
■ ■ Download your certificate of
completion and any supporting notes
■ ■ Other modules on a wide range
of subjects can also be accessed
through the E-learning platform