With no unified consent policy in existence for the health and social care sectors, the National Consent Advisory Group (“NCAG”) was established to draft a policy framework to cover all aspects of consent. In May, a draft policy was produced for consultation, with a view to publishing the final documentation in September of this year. This article examines some of the most notable aspects of the draft policy (the full text of which can be accessed at www.hse.ie).
Valid and informed consent – the presumption of capacity
The draft policy document reaffirms the presumption that all adult patients have capacity and should not be challenged without adequate reason, and that no other person can give or refuse consent on behalf of a capable adult patient. The draft policy also notes that while family members have an important role to play in supporting an adult during the decision making processes, a voluntary decision by a capable adult to refuse treatment must be respected, even where this will likely lead to death.
For practitioners, the draft policy sets out the type of information which must be provided to patients in order to obtain valid and informed consent. This includes the acknowledgement that a patient must be given all information that a reasonable patient would expect in the situation, and advises healthcare professionals to be cognisant of potential biases in how risks are expressed and to give information in a balanced manner.
Furthermore, the draft policy notes that the healthcare or social care professional providing the service is responsible for ensuring that adequate consent has been provided. Consenting the patient or service user may be delegated to another suitably trained and qualified colleague who has sufficient knowledge of the proposed intervention and associated risks / benefits.
Children and minors – how should consent be obtained?
In relation to children, the draft policy proposes that, in general, consent by one parent / guardian will be sufficient for healthcare or social intervention regarding a child. However, in the case that a proposed intervention may have profound and irreversible consequences, consent should be sought from both parents or guardians.
For minors under the age of 16, the draft policy advocates that best practice is to encourage the minor to discuss the matter with a parent or guardian. Healthcare and social interventions will only be provided to minors under 16 without the knowledge or consent of their parents / guardians in exceptional circumstances, and following an assessment. This broadly mirrors the Gillick analysis applicable under UK law.
Among the key aspects of such an assessment include consideration of the minor’s maturity and ability to understand the relevant information and potential consequences, whether their views are stable and consistent, the nature of the proposed intervention, the associated risks and benefits and any public policy factors.
Among the proposed changes in the draft policy relate to section 23 of the Non Fatal Offences against the Person Act 1997, which allows minors between 16 and 18 to consent to treatment, and does not contain an express entitlement to refuse treatment. The draft policy, therefore, proposes that when a minor under 18 refuses life-saving treatment, an application should be brought before the High Court to adjudicate on the refusal.
Finally, the draft policy acknowledges that parents or guardians are presumed to be acting in their child or children’s best interests, even if that parent is under the age of 16. If a decision made by a parent or guardian is thought to conflict with the child’s best interests, the healthcare or social care professional should engage in dialogue to explore the decision further. In such instances, it be may be necessary to seek legal advice.
CPR and Do Not Resuscitate Orders
In its draft policy, the NCAG notes the need for national guidelines in this area. The policy document sets out guidance emphasising the necessity for clear, open and sensitive communication and assessment of a patient’s capacity. This includes detailing the scenarios where it is appropriate to consider CPR and DNR choices, and the relevant principles which should apply in these instances.
Consent and research
A notable aspect of the NCAG’s policy document relates to research and consent in this regard. The draft policy notes that “participation in research is an altruistic act which rarely benefits the individual directly”, with the consequence that the standards for safeguarding research participants must be particularly high. In this regard, there is detailed guidance regarding how practitioners should obtain valid informed consent for research and addresses dealing with vulnerable research participants, while also addressing specific issues which may arise in specialised areas of research, such as genetic and epidemiological research.
In the absence of any unified framework, producing such a policy document, which addresses all areas of consent in the health and social care sectors can be seen as a considerable and valuable undertaking.
In particular, it will be important for any final policy both to be consistent with best legal and ethical practice, but also to ensure that it is clear and workable for practitioners on the frontline as they deal with day-to-day issues.
Among the most notable aspects of the draft policy are the clarification of policy relating to the treatment of under 16s; the refusal of treatment by under 18s, and the position of minor parents in relation to consenting their children.
With the public consultation closing at the end of June, and the final policy documentation to be published in September, it will be interesting to observe what amendments may come about as a result of the consultation process.
However, it is important to note that no guidelines, no matter how comprehensive, can address all the complex, nuanced situations which may arise in daily practice. If a health or social care professional is in any doubt as to the appropriate course of action, they should consult with management and, if necessary, take legal advice.