Consent

Order of ways in which a person with impaired decision-making capacity can have decisions made for them:

1. By advance health directive 2. Guardian appointed by a tribunal 3. Enduring power of attorney 4. Statutory health attorney 5. Adult guardian

According to the Guardianship Regime, how can decisions for a person with impaired decision-making capacity be made?

1. By someone whom the person has specifically appointed for that purpose 2. By someone whom legislation approves 3. Healthcare provider 4. By earlier direction (advance health directive or living will)

What are the 3 requirments for false imprisonment?

1. Complete restraint (Bird v Jones). 2. Overbearance resulting in thinking you have no alternative escape (Symes v Mahon) 3. Intentional restraint (Sayer v Harlow Urban District Council)

What can parents not consent to?

1. Gender reassignment 2. Non-therapeutic sterilization 3. Long term detention and sedation 4. Termination of pregnancy

Who can be appointed as a statutory health attorney?

1. Spouse, provided that the relationship is close and continuing 2. Person over 18 that has care of the person 3. Close friend or family member over age of 18. If there is dispute as to who should be the statutory health attorney, the QCAT will choose one from the above list or will appoint an adult guardian to be the statutory health attorney.

Elements of a valid refusal.

1. The decision is made voluntarily 2. The person has capacity to refuse 3. The refusal relates to the current circumstances. (4) Full information as the the consequences of a decision should be provided in the event where it is perfectly feasible to do so.

List the 4 elements of a valid consent.

1. The decision to consent must be made VOLUNTARILY 2. The patient must have been provided with INFORMATION regarding their condition, proposed treatment, risks associated with the treatment and alternative treatment options. 3. The consent must RELATE SPECIFICALLY TO THE TREATMENT GIVEN. 4. The person giving the consent must have the CAPACITY to consent.

Protection for healthcare providers with regards to advance healthcare directives:

1. The healthcare provider was unaware of its existence. 2. The ahd was ambiguous, inconsistent with good medical practise or unreasonable. The healthcare provider will have to have evidence for this and also state what good medical practise is. 3. The healthcare provider is unaware that the ahd is invalid. Powers of Attorney Act 1998

What must patients be informed of for a valid refusal?

1. their existing condition 2. The recommended treatment 3. The consequences of their refusal.

What is an enduring power of attorney?

A person that is appointed by the principle by formal agreement to make decisions regarding the personal matters and health matters and/or financial matters of the principle in the event that they do not possess decision-making capacity. Specifications regarding personal and health matters are made in the Powers of Attorney Act 1998.

How does the QLD Criminal Code define assault?

Any person who strikes, touches or moves any part of another person directly or indirectly,, or with or without their consent if it is obtained by fraud, or who, by any bodily act or gesture attempts or threatens to apply force of any kind to another person in such away that the person making the attempt or threat actually or apparently has power to present do so assaults the other person, and the offence is called an assault.

What is deprivation of liberty?

Any person who unlawfully confines or detains another in any place against his will, or otherwise unlawfully deprives another of his personal liberty.

When is an assault unlawful?

Assault is always unlawful unless justified, excused or authorized by law. Note that, even if the person gives their consent to the application of force, it still may be classed as an unlawful assault. Authorization occurs when an act of parliament specifically states that the action that would otherwise amount to assault is ok. This usually relates to very specific circumstances, and criteria are set out in the Act. The Guardianship and Administration Act 2000 permits treatment of a person without their consent if the situation is an emergency and treatment is necessary to prevent imminent risk to the life or health of the person. Treatment without consent may also occur to prevent the adult from experiencing significant pain or distress in the circumstance where it is not pracicable to gain consent from a person authorized to do so under the Powers of Attorney Act 1998. Justification occurs when the common law justifies an action that would usually amount to assault. An example is emergency situations where treatment is necessary to prevent serious harm to the life or health of a person (Secretary Department of Health and Community Services v. JWB and SMB). Excuse is where the law (usually by an Act of Parliament) excuses conduct which would otherwise amount to an offence (assault). e.g. the criminal Code Act 1899 excuses assault in self-defense against provoked and unprovoked assault or in aiding someone else in self-defense.

What can you tell me about capacity?

Capacity can be defined as the ability to understand the nature and purpose of the proposed treatment and the consequences of their decision to consent to it. Every adult (in statute and common law an adult is over the age of 18) is presumed to have legal capacity to make decisions unless or until that capacity is rebutted. This means that your patients don't need to prove their capacity before they consent. However, if there is sufficient evidence that their capacity is impaired, their consent can be rebutted. According to the case of ReC, if a person has the ability to take in information pertaining to the treatment, believe it, weight it up and come to a sound judgement, then they have capacity. According to the Guardianship and Administration Act 2000, a person has capacity if they are able to understand the nature and effect of any decisions, freely and voluntarily decide and communicate that decision to others.

When is deprivation of liberty unlawful?

Deprivation of liberty is unlawful at all times except those when it is authorized, justified or excused by law. Authorization occurs when it is specifically stipulated in legislation that you can perform an action which might otherwise amount to deprivation of liberty. The circumstances surrounding the act are usually very specific, however, and the criteria are set in the legislation. (e.g. Mental Health Act 2000 says that the doctor may authorize the use of mechanical restraint to restrain a person that is a risk to themselves and to the public). Justification or excuse occurs when the law justifies or excuses an action that would otherwise amount to deprivation of liberty. For example, deprivation of liberty can be justified/excused if it is an emergency and it is necessary to act to prevent serious harm to the life or health of a person (including the person being restrained).

Describe implied consent.

Implied consent is consent obtained through actions. It may be used to obtain consent when the procedure being performed is simple or a routine investigation, there is common knowledge and understanding of the procedure and the procedure has minimal risks or side effects. A big problem with obtaining implied consent, however, is that gestures may sometimes be misinterpreted.

What are the 3 forms of consent?

Implied consent, Verbal consent and Written consent. All are equally valid. Written consent is the one most commonly obtained. It is important to obtain consent to show that the patient agreed to the treatment and that we respected their autonomy.

What is the Parens Patriae?

The Parens Patriae grants the courts jurisdiction to consent to special cases where parents cannot legally consent. The courts will do so in the best interests of the child.

What constitutes consent that relates specifically to the treatment provided?

The healthcare practitioner must provide only that treatment which has been discussed with and agreed to by the patient.

What constitutes informed consent?

The law requires that a patient be informed in broad terms only about the procedure. Negligence is a taut that covers how much consent is needed for informed consent. For the purposes of defending an allegation of assault, the patient must have been informed in broad terms of the procedure.

What is False Imprisonment?

The wrongful and intentional restraint and/or detention of a person causing a person to be confined to a particular place against their wishes.

What are the elements of trespass to a person?

Trespass to a person is interference with the person of another (touching another person) with the intention to touch. The intention to touch indicates deliberate touching or careless behaviour resulting in touching. The case of McHale v Watson indicates that the person doesn't have to suffer harm for an action in trespass to the person.

Describe verbal consent.

Verbal consent refers to the giving of spoken consent to perform a procedure. It is often better than implied consent because there is less misinterpretation and miscommunication. However, many medical treatments and their associated consequences can be quite complex and diverse. In addition, there are also often many other alternative treatment options. In these cases, relying on verbal consent mightn't be enough.

What constitutes a voluntary consent?

Voluntary consent is consent obtained in the absence of fraud, misrepresentation, duress or coercion. Note that repeated pressure by a healthcare professional in circumstances where the patient is vulnerable can amount to duress or coercion.

What is an advance health care directive?

When a person specifies what they would like to happen to them with regards to health care and special health care in the event that they lose capacity to decide.

Describe written consent.

Written consent is consent provided in writing. The use of consent forms is common. The patient's consent is demonstrated with their signature, which is witnessed by another person. The consent form is documentary evidence of the agreement between the healthcare professional and the patient. Written consent is employed particularly when the treatment is complex or invasive.

When are you excused from obtaining consent before treatment?

You are excused from obtaining consent before treatment when there is legislation that states that you may treat without consent or when there is legislation that mandates treatment without consent.

According to the Family Law Act 1975, parental responsibilities include all...

duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

Acknowledgement of the Gillick test in Australia:

parental powers to consent to medical treatment on behalf of a child diminished gradually as the child's capacities and maturity grow and that this rate of development depends on the individual child. "A minor is, according to this principle, capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. This approach, through lacking in certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law." FROM: Secretary Department of Health and Community Services v JWB and SMB