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Informed consent: an overview.

In one of my early Law Notes for the ATMS Journal I reviewed the law on informed consent and clients. Recently there has been so much information in the media looking at consent generally that I thought a review of this area would be a good idea.

All health care practitioners must ensure that before any medical or therapeutic treatment is given to adults of sound mind, a valid consent must be gained. This consent to treatment must be obtained even if the treatment will benefit the client. Failure to obtain this consent or to ignore the removal of consent could lead to the health care practitioner being sued.

There are two types of consent: consent to the general nature of procedures, and the provision of information that is more detailed, containing advice and warnings about treatment, including risks and alternatives. This more detailed consent is known as Informed Consent and goes further than the general consent to treatment. Informed consent requires the health care practitioner to advise the patient fully of the procedure to be undertaken, discuss the pros and cons, risks and side effects. The health care practitioner should also discuss the pros and cons of alternative treatments or of no treatment at all. Armed with all this information, the client is able to make an informed decision as to their treatment. Clients cannot make the best decision for themselves unless they have all the facts, good and bad.

For the client's informed consent to health care to be valid, certain principles must be present:

* the client has the ability to make a decision about the issue at the time and is not affected by drugs or alcohol;

* the consent is voluntarily given and free from manipulation or undue influence;

* the client is able to clearly understand the information because it is provided in a language that they can understand;

* as far as possible, the client has been advised in simple terms of:

** recommended health care, including the expected benefits, common side effects and alternative health care options

** the material risks associated with the recommended health care, with alternatives or with no treatment;

* the client has sufficient time to consider and clarify information in order to make an informed decision; and

* the information provided and the consent given relate to the specific health care provided.

In Australia generally, all people 18 years and over (adults) are presumed to have the capacity to make a decision on whether they wish to undergo health care or not, except when it can be shown that the individual does not have the capacity to make a decision.

All health care practitioners must obtain general consent from a client before touching (examining) or providing health care to adult and child clients except in a limited number of circumstances where that is not possible.

The client can sometimes indicate their agreement through their actions or by complying with the health practitioner's instructions. This is called implied consent. This usually suffices in situations where there isn't a significant risk, such as taking a client's blood pressure or feeling their pulse.

In most cases though, health care practitioners will need explicit consent, where the client clearly states their agreement to health care. This may be verbal or in writing, such as signing a consent form, which should be supported by detailed information showing the communication process used in obtaining their consent.

Verbal consent may be appropriate for health care that carries low risks and written consent would be advisable where the health care carries a significant risk to the client or there are doubts as to their capacity to consent.

Informed consent takes this further. It is more than just getting a client's signature on the consent form. It is about the entire communication process for ensuring a client fully understands the proposed health care and has, where appropriate, supporting information to make an informed decision whether to agree or not.

So how much detail needs to be given to a client? Legally, a health care professional must give the client information that:

* a reasonable patient in the circumstances would require, to enable the patient to make a reasonably informed decision to undergo the treatment or follow the advice, and

* the health practitioner knows, or ought reasonably to know, that patient wants to be given before making a decision.

The health care practitioner will need to take into account the seriousness of the condition and their attitude and level of understanding when making these decisions.

Health care practitioners must then satisfy themselves that the client has understood the information presented by asking the client to repeat what has been said using their own words by asking them questions about the information provided or by allowing the client to ask questions.

If a health care practitioner is concerned that a client does not understand the health care options well enough to make an informed decision, the practitioner should take reasonable steps to ensure they do. This may involve another verbal discussion and/or distributing written or other visual or aural information.

When a child under the age of 18 years does not have capacity to consent, consent is obtained from a parent or other person with parental responsibility except in specific situations.

Children and young persons under the age of 18 years are able to consent to health care where they have sufficient capacity to do so. However, unlike adults, a child or young person is presumed not to have capacity to give their own consent, unless there is sufficient evidence they have such capacity. This varies from state to state. For example, in New South Wales it is policy that a child aged 14 years and above may consent to their own treatment if they adequately understand and appreciate the nature and consequences of the operation, procedure or treatment. The NSW Department of Health also advises though that where the child is 14 or 15 years of age, it is prudent to also obtain the consent of the parent or guardian. The health care practitioner must decide on a case-by-case basis whether the child has sufficient understanding and intelligence to enable him or her to fully understand what is proposed. For patients 16 years or over, their own consent is sufficient.

In Queensland, for example, there is no fixed limit lower than 18 years where a child is deemed able to consent. If the child has sufficient capacity to consent and does so, this is usually sufficient for giving routine medical treatment without the need for parental consent.

To establish that a child or young person has capacity to consent to health care, the health care practitioner must carry out an assessment to show the patient has sufficient understanding, intelligence and maturity to appreciate the nature, consequences and risks of the proposed health care, and the alternatives, including the consequences of not receiving the health care.

Maturity and intellectual development varies from one individual to another and an assessment of a child's capacity is performed for each new health care decision. Usually for most states the following applies:

* a young person aged between 16 and 18 is most likely able to consent;

* a young person aged between 14 and 16 is reasonably likely to be able consent;

* a child under the age of 14 may not have the capacity to consent.

So should a parent or guardian stay with their child after giving consent? It is good practice to encourage parents to attend with the child. The reasons for this include:

* giving consent to additional health care or a changed health care plan;

* reassuring and supporting the child;

* providing supervision after the health care.

What if the client's understanding of English is limited? To ensure that a valid consent is obtained, interpreters should be used for any non-English speaking clients. A professional interpreter should be present to ensure client consent and understanding, and any consent form signed by a non-English speaking client must contain a statement signed by the Interpreter that he/she has interpreted the content of the form and all the information supplied by the treating practitioner to the client.

For adults with an intellectual impairment the rules are very similar. In New South Wales, for example, the Guardianship Act 1987 spells out who is legally able to consent to medical treatment. If a client is not able to understand the proposed treatment options or is unable to communicate their choice, the health care practitioner must gain substitute consent from the person responsible'. According to the NSW Department of Health a 'person responsible' is not necessarily the patient's next of kin but can be either:

* a guardian (including an enduring guardian) who has the function of consenting to medical, dental and health care treatments; or

* if there is no guardian, the most recent spouse or de facto spouse with whom the person has a close, continuing relationship, an unpaid carer who is now providing support to the person or a relative, or a friend who has a close personal relationship with the person.

It is always best to make sure that you have done all you need to do to get a valid consent before treating your client.

Ingrid Pagura | BA, LLB
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Title Annotation:LAW REPORT
Author:Pagura, Ingrid
Publication:Journal of the Australian Traditional-Medicine Society
Geographic Code:8AUST
Date:Mar 22, 2018
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