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How to make informed consent work in practice

Dr David Molyneux on what is needed for the most frequent ethical issue GPs face ­ informed consent

onsent is possibly the most frequent ethical issue encountered in general practice. Almost everything we do or say to a patient could be considered an area where consent should be sought, though often this goes by default ­ the so-called implicit consent. If the patient is competent, then without consent, anything we do to patients is illegal and is an act of battery. As Lord Donaldson said in the case of Re T (1992): 'An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another....this right is not limited to decisions which others might regard as exists notwithstanding that the reasons for making the choice are rational, irrational or non-existent.'

In order to give informed consent the patient must:

lbe free of coercion

lhave enough knowledge to make the decision

lbe competent.

A patient refusing treatment after taking an overdose of paracetamol may or may not be free of coercion. The task of the GP is to establish if any pressure is being put on him. In the same way, the GP needs to know if he is making the decision based on accurate knowledge. Does he know the mode of death in paracetamol poisoning? Does he know that he is unlikely to die quickly?

Assuming these first two hurdles have been overcome, the crucial question is the third one. Is he competent? Usually, in cases of attempted suicide, the assumption is that the patient is not competent. Maybe they are depressed, are psychotic or confused. Their balance of mind is disturbed and so they are not competent to make this important decision. But what is competence?

Medically it might be tempting to see this problem as in some way related to formal tests of intellect and memory such as the mini-mental state examination. Such a test might give us a clue that the patient was not competent but would not do for the assessment of competence.

Competence is situation specific, for example a higher degree of competence would be needed to consent to complex chemotherapy than a simple hernia repair.

Competent or incompetent?

The Law Society and the BMA jointly suggest the following criteria are crucial:

 · The patient should be able to understand what the treatment is and why it is being suggested

 · The patient should understand the benefits and the risks of treatment and the benefits and risks of any alternatives

 · The patient should understand the consequences of having no treatment

 · The patient should be able to retain the information long enough to be able to make an effective decision

 · The patient should believe the information

 · The patient should be able to weigh up the information in order to make a decision.

So, would the man with the paracetamol overdose pass the competency test? We simply don't know from the information given. Let's assume that the patient is profoundly depressed. He may be so low that he cannot contemplate any treatment making a difference. He may not be capable of weighing up information and deciding. His thinking may be so retarded that he is unable to make any form of decision. He may not believe the doctor's information about treatment and cure.

If these sorts of statements are true, then the man is not competent to refuse or to agree to treatment, and he can be treated against his will. The Mental Health Act would not actually be needed for this, common law would suffice.

Of course, the Mental Health Act could also be introduced here. It is important to realise that competence and mental disorder is not the same thing. If he did turn out to be depressed (and suicidal), he could be admitted under the Mental Health Act, though this can be quite a lengthy process. It is debatable whether a physical treatment can be instituted as part of the treatment of a mental disorder, though one line of argument is that it is acceptable to treat a physical problem if this physical problem arose out of the mental illness. This is by no means universally accepted.

If you chose to let him die from the overdose (because you decided that he was competent, and had all the information, and was not being coerced) then you would leave yourself open to a charge of negligence. Your defence would be respect for his autonomy after establishing his competence.

On the other hand, if you forced him to have lifesaving treatment, he may take an action of battery against you. This might not succeed, if you were motivated by a concern about his mental state and a desire to act in his best interests.

Key points

 · Consent is the commonest ethical issue

 · Patient must be informed and free of coercion

 · Patient must be competent to give consent

 · If in doubt, check Law Society/BMA criteria

ethics for the MRCGP

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