Dilemmas in consent and capacity
Decisions surrounding consent and capacity are often complex, with many grey areas. Dr Mary Church offers her advice on some tricky scenarios
The ethical decisions we GPs confront on a daily basis are toughest when there's a significant downside to making the ‘correct' choice – all assuming it's clear what that choice is. Here are some scenarios to consider, involving when and from whom to seek consent.
An estranged father wants their toddler vaccinated and to know when the practice has given each vaccination in the course. The same child's mother does not want the child vaccinated. Who gives consent?
The proposed intervention is controversial in the minds of the public. Agreement between the parents is the best solution, and ideally the GP should try to facilitate this by discussing the pros and cons of vaccination with both parents present.
However, if agreement cannot be reached, ethical and legal advice needs to be sought. This will depend on when the child was born. In relation to children born after 1 December 2003 (England and Wales), 15 April 2002 (Northern Ireland) and 4 May 2006 (Scotland), both of a child's biological parents have parental responsibility if they are registered on a child's birth certificate. For children born before these dates, both of a child's biological parents will only automatically acquire parental responsibility if they were married at the time of the child's conception or at some time thereafter.
If the parents have never been married, only the mother automatically has parental responsibility, but the father may acquire that status by order or agreement. Neither parent loses parental responsibility on divorce. Parents who do not have parental responsibility should play an essential role in determining best interests and may have a right, under the Human Rights Act, to participate in any decision making involving the child's health.
A GP who cares for a married couple and the husband's mother is contacted by the man requesting a visit for the mother. Although the GP cares for both the son and daughter-in-law of the patient, there is no record of consent to discuss the mother's care with the adult son.
It is essential to receive the appropriate consent when caring for an elderly person. The GP should always act in the patient's best interest whatever the concerns of relatives or other carers. In this scenario, the issue is how to proceed with the initial visit, given that no consent has yet been given for discussion of her health with another party.
The GP could directly approach the patient and tell her about the son's concerns, discuss her health, and obtain and clearly record her consent to discuss it subsequently with her son or daughter-in-law. Or if, as often happens, the son says he doesn't want his mother to know he had approached the doctor, the GP might choose to approach the patient for a general review of her condition – as is considered best practice – without mentioning specific concerns. In neither case is direct consent received at the start, but by using these legitimate approaches patient consent can be obtained.
The question of whether the patient has capacity to give consent is a matter of clinical judgment. If the clinician decides the elderly person lacks capacity to give consent, then the procedures for gaining consent by relatives or other legally recognised persons vary.
In England and Wales, the Mental Capacity Act1 allows people over 18 years of age who have capacity to make a lasting power of attorney, appointing a welfare attorney to make health and personal welfare decisions on their behalf once capacity is lost.
In Scotland, the Adults with Incapacity (Scotland) Act2 allows people over 16 years of age to appoint a welfare attorney who has the power to give consent to medical treatment when the patient loses capacity.
In Northern Ireland, no person can give consent to medical treatment on behalf of another adult. As the law currently stands, doctors may treat a patient who lacks capacity without consent, providing the treatment is necessary and in the patient's best interest.
There are also wider powers for the courts in each of the different countries, details of which can be found in the various acts.
A woman with a diagnosis of remission from a psychiatric illness and whose pre-school child is under care proceedings is to abstain from alcohol to increase her chances of having her child returned. A GP at your practice takes a call from the patient's mother claiming the patient has been drunk and threatened her. The GP shares this information with the patient's community psychiatric nurse. The patient complains she had not given consent for the information to be shared.
This is an issue of child protection, and GPs need to have regard to the rights contained in the Children Act3 and the Human Rights Act,4 which make clear that the child's welfare is paramount. It can normally be assumed that parents will act in the best interests of their children, but in this case it appears the parent is acting in a way that is contrary to the child's best interests. In such circumstances, the needs of the child outweigh those of the mother.
Ultimately, the mother's ability to care for her child could be open to challenge, potentially through the courts. It could therefore be argued that the decision to share the information has been taken in the child's best interests. However, the scenario is not clear-cut, because the patient's mother has made an unsubstantiated allegation and the GP did not actually witness the alleged drunkenness. It might therefore have been more appropriate for the GP to have discussed the situation with the patient first, and to have advised her that it would be necessary to raise the issue with the community psychiatric nurse.
The World Health Organisation re-designated the areas requiring yellow fever vaccine at the end of April 2011 (because the vaccine is not risk-free, especially in over-60s). A family is travelling to Tanzania. The husband has received yellow fever vaccination from a London travel clinic even though it is no longer deemed necessary. Your practice offers the wife an exemption certificate, to be used at borders if requested. But she demands she receive vaccination as her husband is insistent.
If this lady has capacity it is quite clearly her decision and not that of anyone else. The risks and benefits of any treatment should be discussed fully with the patient, and, in this case, ideally also with the husband present.
For travel to Tanzania, a yellow fever certificate is only required from travellers who have been in an endemic region in the previous year. The GP should therefore clearly explain to the woman that vaccination is not necessary, and the vaccine should not be given.
Dr Mary Church is a GP in Glasgow and was chair of the UK LMCs conference 2011
1 Mental Capacity Act 2005. http://tinyurl.com/church20july3
2 Adults with Incapacity (Scotland) Act 2000. http://tinyurl.com/church20july4
3 Children Act 2004. http://tinyurl.com/church20july1
4 Human Rights Act 1998. http://tinyurl.com/church20july2