The National Health Act 2003 makes it an offence to provide a health service to a user without the user’s informed consent (see Appendix 3).**13
Moreover, the National Patients Health Charter (2008) states: “Everyone has a right to be given full and accurate information about:
- the nature of one’s illnesses
- diagnostic procedures
- the proposed treatment, and
- the costs involved
for one to make a decision that affects any one of these elements.”
The HPCSA offers this guidance regarding the context in which the information should be presented:
“When providing information, health care practitioners must do their best to find out about patients’ individual needs and priorities.
“For example, patients’ beliefs, culture, occupation or other factors may have a bearing on the information they need in order to reach a decision.
“Health care practitioners should not make assumptions about patients’ views, but discuss these matters with them and ask them whether they have any concerns about the treatment or the risks it may involve.”14
These are important considerations as each patient will take a different view on the implications of the risks and benefits, depending on his or her personal priorities.
A patient who earns his living repairing watches, for example, is likely to place great significance on a risk of brachial nerve damage, no matter how slight that risk might be.
Box 5 lists the minimum information that the HPCSA considers patients should have before they are in a position to give informed consent. It should be presented in a form and language that the patient can understand, bearing in mind his or her level of literacy.
** The exceptions to this rule are: (a) an emergency where delay would result in the death or serious harm to the patient, (b) when mandated by law or a court order, or (c) where failure to treat the patient would result in a serious risk to public health. If the patient lacks capacity, and a proxy or family member is consenting on the patient’s behalf, that person must be given all the necessary information to give informed consent.
Patients overtly coerced into undergoing treatment they plainly do not want may rightly claim that their “consent” was not given freely and is therefore not valid. Cases of overt coercion are rare, but there are many circumstances in which patients may feel that they have been covertly pushed into accepting treatment they would prefer not to have had. For example, patients may sometimes find it very difficult to say “No” to the proposed treatment, or to challenge the doctor’s assumption that they would have no objections to going ahead, so it is best to check that they have no misgivings before proceeding.
Patients who are detained by the police, immigration services, or prison authorities may be particularly vulnerable, and under these circumstances you should try to ensure that they are aware that they may refuse treatment if they so wish.
Involuntary mental health patients
Under the Mental Health Care Act 2002, involuntary and assisted mental health care users do not lose their right to consent to treatment for illnesses other than mental illnesses, except where “a mental health care practitioner deems a user to be incapable of consenting to treatment or an operation due to mental illness or intellectual disability”. In such cases, a court-appointed curator or a family member may consent on the patient’s behalf.15 (See Box 3 for the order in which family members may consent.) If none of these people are available, the head of the institution may grant consent.
Treatment for mental illnesses may only be given without the patient’s consent within the terms of the Mental Health Care Act 2002 – ie, if authorised by a court or a Review Board or in an emergency where failure to treat would result in “death or irreversible harm to the user” or in the user “inflicting serious harm to himself or others” or to property.16 Under no circumstances may psychosurgery be performed on a mental health patient without the patient’s consent.17
Box 5: Information the patient should be given during the consent process
- “Details of the diagnosis, and prognosis, and the likely prognosis if the condition is left untreated.
- Uncertainties about the diagnosis, including options for further investigation prior to treatment.
- Options for treatment or management of the condition, including the option not to treat.
- The purpose of a proposed investigation or treatment; details of the procedures or therapies involved, including subsidiary treatment such as methods of pain relief; how the patient should prepare for the procedure; and details of what the patient might experience during or after the procedure, including common and serious side effects.
- For each option, explanations of the likely benefits and the probabilities of success; and discussion of any serious or frequently occurring risks, and of any lifestyle changes which may be caused or necessitated by the treatment.
- Advice about whether a proposed treatment is experimental.
- How and when the patient's condition and any side effects will be monitored or re-assessed.
- The name of the doctor who will have overall responsibility for the treatment and, where appropriate, names of the senior members of his or her team.
- Whether students will be involved, and the extent to which students may be involved in an investigation or treatment.
- A reminder that patients can change their minds about a decision at any time.
- A reminder that patients have a right to seek a second opinion.
- Where applicable, details of costs or charges which the patient may have to meet.”
Source: HPCSA, Seeking Patients’ Informed Consent: The Ethical Considerations (2008), para 3.1.3.