Competency may be described as the ability to understand and retain the nature and consequences of a proposed procedure and using this information in making an autonomous decision (Gillon, 1986). In requiring that a person gives consent before treatment, the law recognises the individual’s right to autonomy (Stauch, Wheat and Tingle, 1999). Autonomy is one of the ethical principles and the importance of respecting patients’ autonomy is highlighted by the NMC (2002). The word autonomy originated from the Greek words “auto” and “nomia” which means self-rule (Dimond, 1998).
The DOH (2001) recognises the fact that competent or autonomous adults are entitled to refuse or withdraw treatment even where it is thought to be lifesaving or will clearly benefit health. When patients refuse such treatment, nurses find the decision very hard to accept (Young, 1994). This gives rise to a professional dilemma in that nurses have a professional duty of care to patients (Heywood-Jones, 1999) yet have to respect the autonomous choice of withdrawal of lifesaving treatment which may be seen as a breach in that duty of care. Nevertheless, is respect for autonomy always the answer? Some like Gillon (1986), would argue that in some instances the principle of autonomy does not seem to be the most important of the ethical principles. Other ethical principles such as non-maleficence, doing no harm and beneficence, doing good, take priority in these situations. A typical example is in emergency cases. In addition one can say that the principle of autonomy conflicts with that of non-maleficence and beneficence especially where the nurse has to respect patients’ autonomous decisions, yet has to do what is best for the patient and minimise harm (Tschudin, 2003).
Peoples’ autonomy and competence can be impaired by disease and disability (Obeid, 1997). This gives rise to the question of whether it always possible to respect the autonomy of incompetent patients. With the impairment of autonomy of thought and will, nurses tend to revert to traditional paternalistic ways of thinking. Paternalism carries the notion that nurses or other health professionals are in the best position to make decisions about the most appropriate course of action for the patients in their care, in so doing overlooking the patient’s right to say no (Beauchamp and Childress, 2001).
Modern day society has shifted from paternalism to promoting autonomous decisions of the patient (Dimond, 2003). This view is supported by the DOH (2001) which appreciates that no one can give consent on behalf of the incompetent adult. Nevertheless, these patients can still be treated if the treatment is essential and necessary to save life or prevent serious damage that is only when it is in the best interest of the patient (Tingle and Cribb, 2002). This is justified by the law using the criteria of urgency and necessity (Young, 1994). This point raises several concerns. Firstly, are all the treatment or procedures carried out on patients deemed incompetent essential and life saving? If so, is it in the patient’s best interest?
McHale, Tingle and Peysner (2001) states that according to the Law Commission (1995) “best interests” are not restricted to what would benefit the patient medically. They further state that other factors such as spiritual and religious well fare, their past and present wishes and general well being should also be taken into account. Writing from a similar perspective the DOH (2001) suggests that even when a patient lacks the ability to consent, the willingness or unwillingness to co-operate in certain procedures should be taken as an indication of whether the treatment is in the patient’s best interest.
With reference to the incident mentioned previously, the proposed treatment had serious side effects. Some of these included hair loss and weakness. After commencing the treatment, the patient decided that it would have been best for her to have a good quality of life and continue enjoying life to the fullest. The most important thing to the patient was dying with dignity. The fact that there was no guarantee that the treatment would be effective the patient decided to go against it and continue what she enjoyed doing which was socializing with her friends and going to church with her family.
As stated in Gillon’s (1986) definition, the provision of sufficient information to the patient by the health professional is a moral and legal requirement to acquire. Debate has surrounded the term “sufficient information” for numerous years (Dimond, 2003). One possible meaning has been suggested by Beauchamp and Childress (2001) as all significant and material facts including significant risks of substantial harm. Gillon (1986) appreciates that health professionals often object to this particular obligation on the grounds of therapeutic privilege. This suggests that nurses, based on experience and knowledge could decide on what information should be given to the patient if such information might confuse or alarm the patient thereby affecting their health negatively by worsening their condition. This notion is supported by McHale, Tingle and Peysner (2001) which recognises that certain situations exist in which patients are unable to cope if told their prognosis.
Alternatively, it can be seen in the light that there are certain contexts within which autonomous patients should be allowed to determine the amount of information they are given (Tingle and Cribb, 2002). Certain autonomous patients may not wish to know the full details of their prognosis and proposed treatments. In such a case there are the issues of respect for autonomy and the duty to inform. The right of respect for autonomy however might take privilege over that of full disclosure as the patients wishes are seen to be of primary importance (Tschudin, 2003). This request however has to be recorded by the nurse as nurses are likely to become involved in negligence litigations after a patient has suffered serious accidents (DOH, 2001).
Negligence is a form of tort law and deals with injuries caused by one person to another (Stauch, Wheat and Tingle, 1999). Circumstances in which negligence actions may arise are varied and may include diagnosis and the selection, delivery and monitoring of care. To prove negligence, Dimond (2003) recognises that four elements have to be established:
- A duty of care is owed by the professional
- There has been a breach to that duty of care
- A reasonably foreseeable consequence of this breach of duty is that
- Harm has occurred as a result.
She recommends that where possible, the nurses should attempt to ensure that information for the patient is put into writing as well as word of mouth. This gives the patient the opportunity to review information at their convenience and also has the additional advantage of providing some evidence, if a case for negligence arises, that the patient was informed of specific risks of harm.
In situations where the patients ask about their prognosis and requests further information the nurses have an obligation of truth-telling in spite of the severity of their condition (Rumbold, 2000). If the nurse does not feel comfortable disclosing such information with the patient or does not know for certain the details of their condition she should seek the help of other health professionals as disclosure of false information may be detrimental to the nurse-patient relationship (Tschudin, 2003). Truth-telling is both an ethical and legal obligation in practice.
The patient who withdrew her treatment made her decision based on the effects the treatment would have on her quality of life. As a result it can be safely argued that she was well informed and knew the risks of all potential harm. The information was also revisited in the meeting held with her and the family members after her decision to withdraw treatment was made.
Without the consent of a competent and autonomous patient, any treatment or care which comprises touching could be considered as a trespass to the person (Dimond, 2003). A trespass to a person constitutes an assault, if there is fear or apprehension of noxious touching or a battery, if there is actual harmful or offensive touching (Stauch, Wheat and Tingle, 1999). The question is can trespass only occur in the absence of consent? A battery can also occur in situations where the patient has consented to treatment and:
- The nurses or other health professionals go beyond the scope of that consent
- The nurse or health professional performs a different procedure for which the consent was obtained (Dimond, 2003).
In emergency cases where consent cannot be obtained or details of the treatment cannot be discussed, battery can be overridden if treatment is in the patient’s best interest at that time. This view is supported by Stauch, Wheat and Tingle (1999) who further recognise that state interests such as preserving life, protecting innocent third parties, preventing suicide and safeguarding integrity of the medical profession are grounds for overlooking battery.
To sum up, to give a valid consent, patients need to understand in broad terms, the nature and purpose of the proposed treatment (Tingle and Cribb, 2002). Any misrepresentation of these elements will nullify consent and have serious legal and professional implications for the nurse (Young, 1994). Nurses have an important contribution to make in ensuring that patients in their care understand the significance of the consent they are requested to provide and the obstacles that might lie in their way of giving it.
There are situations which arise in which patients cannot consent to treatment for example in the case of emergencies or with incompetent patients. The law recognises this fact and allows nurses to treat patients when it is considered to be in their best interest. However best interest must not only be viewed as what will benefit the patient medically. Other aspects such as religion and beliefs or general well being must be taken into account (Rumbold, 2000).
An incident from practice in which a patient withdrew consent of lifesaving treatment was introduced and explored. Nurses find great difficulty coping with this decision which is contrary to the ethical principle of respect for autonomy. Similar dilemmas exist in healthcare between legal, ethical and professional aspects of consent and will continue to due to the fact that consent is a very controversial subject.
REFERENCES:
BEAUCHAMP, J. and CHILDRESS, J. (2001) Principles of Biomedical Ethics. 5th ed., Oxford: Oxford University Press.
DEPARTMENT OF HEALTH (2001) Seeking Consent. London: DOH <> (accessed 12th November, 2004).
DIMOND, B. (1998) The Legal Aspects of Complementary Theory Practice: A Guide of Health Care Professionals. Edinburgh: Churchill Livingstone.
DIMOND, B. (2002) Legal Aspects of Nursing. 3rd ed., London: Longman.
DIMOND, B. (2003) Legal Aspects of Consent. Wiltshire: Quay Books.
GILLON, R. (1986) Philosophical Medical Ethics. Chichester: Wiley.
HEYWOOD-JONES, I. (1999) The UKCC Code. A Critical Guide. London: Mosby.
MCHALE, J., TINGLE,J. and PEYSNER, J. (2001) Law and Nursing. 2nd ed., Oxford: Butterworth Heinemann.
MC PARLAND, J., SCOTT, P.A., ARNDT, M., DASSEN, T., GASULL, M., LEMONIDOU, C., VALIMAKI, M. and LEINOKILPI, H. (2000) Autonomy and Clinical Practice 3: Issues of Patient Consent. British Journal of Nursing, 9(10), pp 660-665.
NURSING AND MIDWIFERY COUNCIL (2002) Code of Professional Conduct. London: NMC.
OBEID, A. (1997) Respecting Client Autonomy. Journal of Community Nursing, 11(7), pp 14-18.
RUMBOLD, G. (2000) Ethics in Nursing Practice. 3rd ed., London: Bailliere Tindall.
STAUCH, M., WHEAT, K. and TINGLE, J. (1999) Sourcebook on Medical Law. London: Cavendish Publishing Limited.
TINGLE, J. and CRIBB, A. (2002) Nursing Law and Ethics. 2nd ed., Oxford: Blackwell Science Limited.
TSCHUDIN, V. (2003) Ethics in Nursing: The Caring Relationship. 3rd ed., London: Butterworth Heinemann.
YOUNG, A.P. (1994) Law and Professional Conduct in Nursing. 2nd ed., London: Scutari.
