Informed Consent in Healthcare Settings

Author: Emma Cave, Professor of Healthcare Law, Durham University; Scottish Parliament Academic Fellow.

PDF Published: Thursday 10 Jan 2019 (SB 19-01)

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Overview
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Overview
Report
- Executive Summary
- Chapter 1 Consent to medical treatment
  - 1.1 Why seek consent?
  - 1.2 When is consent valid?
    
    1.2.1 Express and implied consent
    
    1.2.2 Proxy consent
    
    1.2.3 Consent and refusal
    
    1.2.4 Advance directives and statements
    
    1.2.5 Emergencies
    
    1.2.6 Recording decisions
  - 1.3 When is consent informed?
    
    (Untitled)
    
    (Untitled)
- Chapter 2 Montgomery v Lanarkshire Health Board
  - 2.1 The facts
  - 2.2 Montgomery in the Scottish courts
  - 2.3 Montgomery in the Supreme Court
  - 2.4 Guiding principles for clinicians set out in Montgomery
  - 2.5 From medical paternalism to patient autonomy
  - 2.6 Alternatives to claiming in clinical negligence
  - 2.7 Candour
- Chapter 3 Implications of Montgomery for clinicians
  - 3.1 Evolutionary not revolutionary change
  - 3.2 Realistic medicine
  - 3.3 Revisions to guidance and processes
- Chapter 4 Questions remaining
  - 4.1 How should reasonable alternatives be identified?
  - 4.2 The more information the better?
  - 4.3 Whose view of risk counts?
  - 4.4 How much responsibility should patients take for determining risk?
  - 4.5 What exceptions are there to the duty to disclose information?
  - 4.6 How will the right to information be developed beyond the scope of informed consent?
- Chapter 5 Applying Montgomery when capacity is compromised
  - 5.1 Substitute and shared decision-making
  - 5.2 Mental health
  - 5.3 Incapacity
    
    5.3.1 How is incapacity defined?
    
    5.3.2 Principles
    
    5.3.3 Who decides?
    
    5.3.4 Power of attorney
    
    5.3.5 Additional sources of information
  - 5.4 Human rights and supported decision-making
    
    5.4.1 Article 8, European Convention on Human Rights
    
    5.4.2 Article 12 UN Convention on the Rights of Persons with Disabilities
    
    5.4.3 Supported decision-making
    
    5.4.4 Additional sources of information
    
    5.5 Commentary
- Chapter 6 Children
  - 6.1 Children's rights
  - 6.2 When can a child provide valid consent?
  - 6.3 When can a child provide a valid refusal of consent?
    
    6.3.1 England and Wales
    
    6.3.2 Scotland
  - 6.4 Parental responsibility and its limits
    
    6.4.1 Additional sources of information
  - 6.5 Informing children
    
    6.5.1 Additional sources of information
  - 6.6 Immunisations
    
    6.6.1 Human Papillomavirus (HPV)
- Commentary
Sources

Scottish Executive. (2000). The Adults with Incapacity Act. Retrieved from http://www.scotland.gov.uk/Topics/Justice/law/aw [accessed 23 October 2018]

Mental Welfare Commission for Scotland. (n.d.) Advance Statements. Retrieved from https://www.mwcscot.org.uk/get-help/getting-treatment/advance-statements/ [accessed 23 October 2018]

Medical Protection Society. (2017). New judgment on patient consent. Retrieved from https://www.medicalprotection.org/uk/articles/new-judgment-on-patient-consent [accessed 23 October 2018]

General Medical Council. (2018). Decision making and consent: supporting patient choices about health and care: Draft guidance for consultation. Retrieved from https://www.gmc-uk.org/-/media/ethical-guidance/related-pdf-items/consent-daft-guidance/consent-draft-guidance.pdf [accessed 24 October 2018]

Scottish Government. (2018). Duty of Candour. Retrieved from https://www2.gov.scot/Topics/Health/Policy/Duty-of-Candour [accessed 10 January 2019]

Haywood, R., & Miola, J. (2017). The changing face of pre-operative medical disclosure: Placing the patient at the heart of the matter. Law Quarterly Review, 133(2), 296-321.

Farrell, A.M., & Brazier, M. (2016). Not so new directions in the law of consent? Examining Montgomery v Lanarkshire Health Board. Journal of Medical Ethics, 42, 85-88.

McCombe, K., & Bogod, D.G. (2015). Paternalism and consent: has the law finally caught up with the profession?. Anaesthesia, 70(9), 1016-1019.

General Medical Council. (2008). Consent: Patients and Doctors Making Decisions Together. Retrieved from https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/consent [accessed 23 October 2018]

Choosing Wisely. (2017). Choosing Wisely UK. Retrieved from http://www.choosingwisely.co.uk/ [accessed 23 October 2018]

CMO Scotland. (2018). Annual Report 2016-17: Practising Realistic Medicine. Retrieved from https://beta.gov.scot/publications/practising-realistic-medicine/pages/3/ [accessed 23 October 2018]

Medical Protection Society. (2017). An Essential Guide to Consent: Advice for the UK. Retrieved from https://mpscdnuks.azureedge.net/resources/docs/mp/publications/practice-matters/mps-essential-guide-to-consent.pdf [accessed 23 October 2018]

Royal College of Surgeons. (2016). Consent: Supported Decision-Making: A Guide to Good Practice. Retrieved from https://www.rcseng.ac.uk/library-and-publications/rcs-publications/docs/consent-good-practice-guide/ [accessed 23 October 2018]

Scottish Government. (2016). Health and Social Care Delivery Plan. Retrieved from http://www.gov.scot/Resource/0051/00511950.pdf [accessed 23 October 2018]

Devaney, S., Purshouse, C., Cave, E., Heywood, R., Miola, J., & Reinach, N. (2018). The Far-Reaching Implications of Montgomery for Risk Disclosure in Practice. Journal of Patient Safety and Risk Management. Forthcoming.

Cave, E. (2017). The ill-informed: Consent to medical treatment and the therapeutic exception. Common Law World Review, 46(2), 140-168. doi: 10.1177/1473779517709452

Scottish Government. (2017, March). Mental Health Strategy 2017-2027. Retrieved from https://beta.gov.scot/publications/mental-health-strategy-2017-2027/ [accessed 23 October 2018]

Mental Welfare Commission for Scotland. (2016). Supported decision-making. Retrieved from https://www.mwcscot.org.uk/media/348023/mwc_sdm_draft_gp_guide_10__post_board__jw_final.pdf [accessed 23 October 2018]

Scottish Executive. (2003). Mental Health (Care and Treatment) Act. Retrieved from http://www.legislation.gov.uk/asp/2003/13/contents

Scottish Government. (2007). The Adult Support and Protection Act. Retrieved from http://www.scotland.gov.uk/Topics/Health/care/adult-care-and-support/legislation

Mental Welfare Commission for Scotland. (2017). Consent to treatment: A guide for mental health practitioners. Retrieved from https://www.mwcscot.org.uk/media/392186/consent_to_treatment_2018.pdf [accessed 23 October 2018]

Mental Welfare Commission for Scotland. (n.d.) Independent Advocacy. Retrieved from https://www.mwcscot.org.uk/the-law/mental-health-act/independent-advocacy/ [accessed 23 October 2018]

Mental Welfare Commission for Scotland. (n.d.) Guidance for mental health professionals about changes to the Mental Health Act implemented on 30 June 2017. Retrieved from https://www.mwcscot.org.uk/media/376776/guidance_for_mental_health_professionals_on_changes_to_the_mental_health_act.pdf [accessed 23 October 2018]

Mental Welfare Commission for Scotland. (n.d.) Being a named person. Retrieved from https://www.mwcscot.org.uk/get-help/help-for-carers/being-a-named-person/ [accessed 23 October 2018]

Mental Welfare Commission for Scotland. (n.d.) Principles of the Act. Retrieved from https://www.mwcscot.org.uk/the-law/adults-with-incapacity-act/principles-of-the-act/ [accessed 23 October 2018]

UK Parliament. (2005). Mental Capacity Act. Retrieved from http://www.legislation.gov.uk/ukpga/2005/9/contents [accessed 10 January 2019]

NHS Inform. (n.d.) Information for young people using NHS services. Retrieved from https://www.nhsinform.scot/care-support-and-rights/health-rights/young-people/information-for-young-people-using-nhs-services# [accessed 23 October 2018]

Brazier, M., & Cave, E. (2016). Medicine, Patients and the Law. Manchester: MUP.

General Medical Council. (2007). 0-18 years: guidance for all doctors. Retrieved from from https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/0-18-years [accessed 23 October 2018]

Scottish Government. (2018). Review of Adults with Incapacity legislation.

Last Updated: 19/1 8:53pm

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