There are a number of legal and ethical duties expected of nurses. Most of these involve care for patient’s autonomy and confidentiality despite the medical care. Failure to act regarding these can give rise to liability. One aspect of Patient’s autonomy involves giving or withholding his consent about treatment. This paper takes into account ‘consent’ as the aspect of law regarding nursing. Consent is defined by NHS Choices (2010) as: “the principle that a person must give their permission before they receive any type of medical treatment.
”1 Under the Nursing and Midwifery Council (hereafter NMC) code of conduct (enforced in May, 2008) the patient can either extend or withdraw his consent regarding treatment after which he should be or cannot be treated as per his wishes respectively. Cowan (2009) observed that the idea underlying this is to empower patient to acknowledge the treatment options available to them and choose whether or not they want to have it. Therefore, a nurse cannot administer the treatment to a patient if he withholds his consent about the treatment.
As per NMC, there are three “over-riding professional responsibilities” to obtain a valid consent. These are quoted as below: “To make the care of people their first concern and ensure they gain consent before they begin any treatment or care. ”2 “Ensure that the process of establishing consent is rigorous, transparent and demonstrates a clear level of professional accountability. ”3 “Accurately record all discussions and decisions relating to obtaining consent. ”4 The NMC Code (2008) also states that, “make the care of people your first concern, treating them as individuals and respecting their dignity.
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” Scott (et al. 2003) observed that being respected implies that not to treat patients against their will. Tomkin & Hanafin (1995) observed that respecting the patient’s autonomy means respecting his ‘consent’. Mason & Laurie (2010) observed that just because the healthcare professional believed that the treatment was appropriate doesn’t mean that the patient must undergo it, consent must be obtained. Failure to do so amounts to the crime of battery in English law. Booth (2002) observed that patients should not be subjected to treatment by any health professional unless their consent is at hand.
He further observed that pre-requisites of obtaining valid consent include informing patient regarding disease, diagnosis, options regarding types of treatment, consequences that might or might not take place as a result of treatment to the patient. Thus, if a nurse treats the patient without his consent it would amount to treating him against his will which would constitute a crime of battery on nurse’s part. It is therefore imperative that before administering the treatment, nurse obtains consent of patient. However, consent alone is not sufficient; it must be valid as well.
Therefore, the NMC code also requires from nurses that in order to obtain a valid consent it must be obtained from a competent individual i. e. one who possesses the capacity to consent. Furthermore, if a person is giving consent on behalf of another, he must be lawfully appointed. No one can give consent for someone who possesses the mental capacity to give consent. (Mental Capacity Act 2005) Consent is considered to enhance partnership between practitioner (e. g. nurse) and patient. Providing information alone is not sufficient, communication is the key to obtain valid consent.
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There exists difference between merely giving information and communicating effectively with patient about the information. Bristol Inquiry Recommendations are helpful in understanding the difference regarding this. These are quoted below: “The process of informing the patient, and obtaining consent on a course of a treatment, should be regarded as a process and not a one-off event consisting of obtaining a patient’s signature on a form. The process of consent should apply not only to surgical procedures but all clinical procedures and examinations which involve any form of touching.
This must not mean more forms: it means more communication. As part of the process of obtaining consent, except when they have indicated otherwise, patients should be given sufficient information about what is to take place, the risks, uncertainties, and possible negative consequences of the proposed treatment, about any alternatives and about the likely outcome, to enable them to make a choice about how to proceed. ”5 Besides, if a person lacks mental capacity to give valid consent, nurses caring for such a person should be involved in assessing the treatment to be administered.
However, they must be “aware of the legislation regarding mental capacity, ensuring that people who lack capacity remain at the centre of decision making and are fully safeguarded. ”6 The Mental Capacity Act (2005) offers assistance regarding ‘capacity’. The Act applies to all aged 16 and above and to those with learning disability, dementia, brain injury, autism and mental health issues. The Act presumes ‘capacity’ in relation to adults unless situation exists otherwise. It requires extending all sorts of help to the person in question before drawing conclusion that they cannot consent.
Even an apparently unwise decision if is extended by a person of full mind must be respected and adhered to. Doing something for those who lack the capacity to consent must be done in the best of their interests and it should be least restrictive of their independence and rights. However, exceptions to this include: emergency situations and mentally incapacitated people. emergency situation might involve someone who has temporarily become unable to consent e. g. due to in unconscious state of mind. In such instance he may be given necessary treatment to save life.
... consent. Informed consent means consent to a particular treatment based on a patient's voluntariness, the amount and relevance of information they have and the capacity to consent. ... both physical and mental hindrances forced against a person in order to persuade them to choose a ... happen, one that said the patient always has the final word regarding what the treatment should be applied, would result ...
The law in such instance allows medical practitioners such as nurses and doctors to administer treatment without the consent of person in so far it is in his best interest. There are some situations where courts must be referred to for lawfulness of administration of treatment for a person unable to consent. These include: withdrawing the patient from persistent vegetative state, sterilization for the purpose of contraception, obtaining tissue for bone marrow, where the doubt exists regarding the capacity of the person.
7 In Sidaway v Bethlem Royal Hospital Governors (1985), Lord Diplock said that the information to be disclosed to patient for obtaining consent should be done by following the Bolam standard (named after the case it was enunciated in: Bolam v Friern Hospital Management Committee, 1957) It was held in this case that if the medical practitioner acted in accordance with the practice which is accepted responsible by a respectable body of medical opinion he is not held in breach of law.
Therefore, if a nurse is administering treatment in emergency situation (usually under the supervision of doctor) to a patient who is unable to consent and that is accepted reasonable by a respectable body of medical opinion e. g. by medical board then she may not be held in breach of law regarding consent.