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Informed Consent 1: Legal Basis and Implications for Practice

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Informed Consent 1: Legal Basis and Implications for Practice Copyright EMAP Publishing 2018 This article is not for distribution Clinical Practice Keywords Decision-making/Autonomy/ Information/Case law/Legal duties Discussion This article has been Consent double-blind peer reviewed In this article... ● Duty to obtain informed consent from patients before giving treatment ● Salient law cases on patient decision making and informed consent ● Implications of the law on informed consent for nursing practice Informed consent 1: legal basis and implications for practice Key points Author Helen Taylor is visiting lecturer at the University of Birmingham and freelance Nurses must writer on health law. generally obtain the patient’s informed Abstract Nurses have a legal duty to ensure they obtain informed consent from consent before their patients before carrying out any intervention or treatment. This is one of proceeding with the requirements of the Nursing and Midwifery Council’s Code, which sets out a treatment mandatory framework of standards for practice. Nurses and midwives will all be aware of that requirement but they also need to understand exactly what informed Proceeding with consent is, how it is underpinned by law, and what it means for practice. This article – treatment without the first in a series of two – discusses why informed consent is fundamental to the the patient’s provision of person-centred care and explores the legal principles behind it. consent is, in most cases, unlawful Citation Taylor H (2018) Informed consent 1: legal basis and implications for practice. Nursing Times [online]; 114: 6, 25-28. The law on informed consent in adults was changed by a urses know they must have 2005; Thompson and Dowding, 2001; judgement of the their patients’ informed con- Hamm, 1988). Supreme Court in sent before giving any form of Regardless of the process used, the con- 2015 (Montgomery v Ncare or treatment but they may sensus is that decisions will be based on Lanarkshire) not be fully aware of the legal basis behind information of one kind or another, and this and the implications of not doing so. will influence the outcomes for patients Nurses must provide What is informed consent? Why is it (Taylor, 2005). It follows, therefore, that patients with the important? What does it mean for prac- the quality of the outcomes will depend information they tice? This article – the first in a two-part on the quality of the information upon need to make an series – explores the legal principles of which decisions were based. As such, informed decision informed consent in adults, considers why nurses must ensure their decisions are about their care it is fundamental to the provision of based on “the best evidence available” person-centred care, and explains how the (Nursing and Midwifery Council, 2015). If the necessary law relating to informed consent has information to recently changed. Person-centred care make an informed Evidence-based practice is considered fun- decision is not given, Clinical decision making damental to the delivery of good-quality consent may not Nurses make many clinical judgements person-centred care (Banner et al, 2016). be valid and nurses and decisions throughout the course of The concept of ‘person-centred care’ is may be acting their working day. They assess patients’ widely cited in the literature and applied in unlawfully if they health status and plan care based on their nursing practice. Although the term may proceed with observations, deciding which treatments be used interchangeably with ‘patient- treatment and interventions best meet patients’ centred care’ (Perez-Merino, 2014; McCrae, needs. The process of clinical decision 2013), there is some variance in how it is making has been widely explored and can defined in the literature. Sometimes be explained in a number of ways, ranging person-centred care is not defined but, from the intuitive to the analytical (Taylor, instead, is simply described in terms of Nursing Times [online] June 2018 / Vol 114 Issue 6 25 www.nursingtimes.net Copyright EMAP Publishing 2018 This article is not for distribution Clinical Practice Discussion patient autonomy, holistic care and pri- macy of patient need (Hayes, 2014). For the purpose of this article, person- centred care is defined as the: “approach to care that places the person at the centre of their own care. Individuals are supported, facilitated and enabled to contribute to their care through shared decision making, equality of communication and mutual respect” (Mitchell and Agnelli, 2015). Person-centred care implies the cen- trality of the patient, who is seen as a key participant in care, rather than the passive recipient of it. Accountability and best evidence The NMC’s (2015) code of conduct sets out a mandatory framework of professional standards for practice. All registered nurses, registered midwives, student nurses and student midwifes are account- able for their practice and must comply with the Code to ensure their practice meets the standards required not only by the NMC, but also by patients and the general public. Compliance with: “the professional standards that registered nurses and midwives must uphold [is] not negotiable or Nurses must give patients all the information that is necessary so they can make an discretionary” (NMC, 2015). informed decision about their care and any potential treatment Some of the key legal principles of the evidence, they will be able to inform, As well as understanding the legal NMC Code are highlighted in Box 1. Nurses explain and account for these decisions framework that underpins care, nurses will be accountable for any deviation from (Aveyard and Sharp, 2017). need to be aware that the law can change these principles and must be able to justify Arguably, as well as informing the clin- quickly, even after long periods without their actions (Cornock, 2011). If they base ical element of care (for example, selecting changes. This is the case of the law relating their decisions on the best available the most appropriate wound dressing), the to consent to treatment. best available evidence must also inform Box 1. The NMC Code: the wider framework for decision making Autonomy key legal principles (for example, determining the legality of It is useful to start by considering consent providing treatment if the patient is from an ethical perspective and how it The Nursing and Midwifery Council’s unconscious and, as such, not able to give relates to the principle of autonomy. Code says that nurses must not only their consent). Autonomy recognises an individual’s right “act in the best interests of people at all to make choices on matters relating to times”, but also balance this with “the Understanding the legal basis themselves, unrestricted by factors – such requirement to respect a person’s right There is a legal principle that ignorance is as controls imposed by others or lack of to accept or refuse treatment”. This not a defence: if a law is not known or not information – that would limit the means nurses must “get properly understood, this does not remove any lia- freedom of their choice (Beauchamp and informed consent and document it bility that comes with it. To recognise and Childress, 2012). before carrying out any action”. The uphold their patients’ rights, nurses must This principle is upheld in the law, Code emphasises the need for nurses not only be aware of the standards set out which recognises that all adults generally to “keep to all relevant laws about in the Code, but also understand their legal have a presumed right to decide what hap- mental capacity that apply in the basis. However, although nurses may be pens to their body. The law not only pro- country in which [they] are practising, aware of broad legal concepts set out in the tects a person from any unwanted touch, and make sure that the rights and best Code, they do not always understand the but also from the fear of being touched. It interests of those who lack capacity detail of the law and how it affects their is unlawful to touch another person unless are still at the centre of the decision- practice (Taylor, 2016). This means that, they have agreed to it; their consent makes making process”. beyond the potential negative impact on lawful an act that would otherwise be Source: Nursing and Midwifery Council (2015) patient care, they may be in breach of the unlawful (Taylor, 2013), as highlighted in ALAMY law without knowing it. Collins v Wilcock [1984] 3 All ER374. Nursing Times [online] June 2018 / Vol 114 Issue 6 26 www.nursingtimes.net Copyright EMAP Publishing 2018 This article is not for distribution Clinical Practice Discussion Non-consensual touching may breach Box 2. The Montgomery case both civil and criminal law. Mrs Montgomery, who had type 1 disability for Mrs Montgomery’s son. She Right to decide diabetes, was expecting her first baby; a sued the NHS trust, arguing that she This applies to all areas of life, including pre-natal assessment indicated that the should have been advised of the risks of healthcare (Re F (Mental Patient: Sterilisa- baby would be large. During the later vaginal delivery and that, if she had been tion) [1990] 2 AC 1) and means patients gen- stages of her pregnancy, she told her aware of those risks, she would have erally have the right to make decisions obstetrician about her concerns that the opted for an elective Caesarean section. about their care – for example, whether to baby’s size would make delivery difficult. When this case was first heard, the accept a treatment or intervention – even if The obstetrician recognised there was Scottish Court of Session followed the their “refusal may risk permanent injury a 9-10% risk of shoulder dystocia that approach taken in Sidaway v Board of to [their] health or even lead to premature would complicate the delivery, but Governors of the Bethlem Royal Hospital death”.
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