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Law – Year 3. JP. Consent to Medical Treatment. Adult patients who lack decision-making capacity. Introduction. In Australia, people’s right to exercise free will is strongly protected as long as they remain within the law Choose their treatment
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Law – Year 3 JP
Consent to Medical Treatment Adult patients who lack decision-making capacity
Introduction • In Australia, people’s right to exercise free will is strongly protected as long as they remain within the law • Choose their treatment • When people appear to make bad decisions in regards to their well-being, there arises a conflict between the respect for people (autonomy) and care for others (beneficence) • Smoking cigarrettes • Some adults lose decision-making capacity • Issue with end of life decisions
Clinical Aspects of Capacity • Principles of capacity • Adults are presumed capable • Similar to innocence; it needs to be disproved • Specific capacity • Make particular decisions at a particular time • Alzheimer’s dementia, complex vs simple decisions • Evidence of lack of capacity • Lack of knowledge of the matters at hand • Lack of knowledge of choices • Lack of appreciation of the reasonable consequences • Decision-making based on delusional constructs
Assessing Capacity • Six Step Capacity Assessment process • Ensure a valid trigger is present • Event that puts the person at risk • Engage those being assessed • Information gathering • From person being assessed • Education • Provide opportunity to learn information • Ignorance does not equal incapacity • Capacity assessment • Look for evidence of incapacity • Act on results of assessment • Potentially find surrogate decision makerss
Proxy Decision Makers • Only where an individual lacks competence and the appointment of a guardian would provide the “least restrictive” means of protecting the “best interests” of the individual concerned • Can make decisions about medical treatment • Potential decision makers: • Guardian appointed by VCAT • Enduring guardian appointed by a patient prior to becoming incompetent • Close friend or relative
Victorian Guardianship Legislation • Victorian Guardianship and Administration Act (1986) applies to patient who are defined as persons over the age of 18 who are incapable of giving consent to medical treatment • Guardians can either be: • Appointed by VCAT • Enduring guardians • Must sign a statutory-prescribed form before incompetence • Cannot at the time of appointment provide services to the appointor • Person responsible • Order starting: agent under the provisions of medical treatment act (1988) VCAT people spouse primary carer nearest relative
Obligations of the Medical Practitioner • Can still carry out treatment if there is no person responsible that cannot be located • Notice to the Public Advocate • Fill in a S.42K notice • Entry in patient’s clinical record • Why • If MP opinion differs to the personal responsible • Notice to the Public Advocate and person responsible • PR has 7 days to appeal to the Public Advocate • Entry in patient’s clincal record • MP do not need to obtain consent from the PR: • Minor treatments • Emergency treatment • Role of VCAT • Special procedures: • Permanently infertile, termination of pregnancy, transplantation of their own tissue
Glossary • Enduring power of attorney – document appointing a person • Guardian – person appointed by VCAT • Person responsible – person who comes within a catergory contained in the Guardianship and Administration Act 1986 • Public advocate – the good guys (OPA – Office of Public Advocate, represents the interests of Victorian people with disabilities) • VCAT – Victorian Civil and Administrative Tribunal (legal body that deals with all sorts of things)
End of Life Decisions Involving Competent and Incompetent Patients
Introduction • Distinction between suicide and refusal of medical treatment • Competent individual who refuses treatment which cannot cure, which is burdensome is not committing suicide • Doctors duty does not require initiation, continuation of treatment which they consider futile • Euthanasia • Victorian Medical Board strongly opposed any legislation • Against every principle the medical profession stands for • Depression frequently accompanies severe illness (competency) • No certainties in medicine (terminal or not)
Refusal of medical treatment • Medical treatment Act 1988 • Refusal of treatment by competent patients • Right to refuse – common law • Competent adult can refuse treatment including life-saving treatment • Cannot refuse palliative care • Brightwater Care Group vsRossiter (2009) • Right to refuse – statutory provisions • Patient can obtain a refusal of treatment certificate • Doctors cannot complete the task stated • Refusal of treatment by incompetent patients • Agent or guardian can refuse treatment • Proxy decision-maker can only refuse treatment if: • Unreasonable distress to the patient • Reasonable grounds for believing the patient would refuse treatment • Is artificial nutrition and hydration “medical treatment”? • Palliative care is defined by legislation as: provision of reasonable medical procedures for the relief of pain, suffering or discomfort; or the reasonable provision of food and water
Not For Resuscitation Orders • Need to cover all bases • Recorded in patient’s notes, reasoning, recordings of discussions with the patient, assessment of patient’s competence • Northridge vs Central Sydney Area Health Service (2000) • Family complained that a NFR order was made premature • Eventually waived as there were inadequate discussions between family and health service • Patient made a recovery
Withdrawal of Medical Treatment • General rule: omissions, as opposed to positive acts, whcih result in another's death do not, constitute murder or manslaughter • Persistant vegetative state (PVS) with no hope of recovery it is not unlawful to stop PEGss
Glossary • Advance directive • Agent – person appointed as a power of atorney • PVS (post coma unresposniveness) – patient is awake but not aware of their environment • Diagnosis should only be made after one year, except under exceptional circumstances
Definition of Death • For most people, the moment of death is equated with cessation of heart beat and an absences of respiration • Legal uncertainties arose when the development of technologies which enabled resuscitation of “dead people” • Legally dead when: • Irreversible cessation of all functions of the person’s brain (whole brain death); or • Irreversible cessation of circulation of blood in the person’s body
Consent requirements concerning tissue removal from deceased persons • Usual practice for next of kin views to be taken into account, even if a deceased person’s consent is valid
Adult Donors • Consent to non regenerative tissue removal • Due to the potential coercive emotional pressures by family members (intra-family donations), these criteria must be met: • Donor must be over 18 • Consent must be in writing and state the time • Specified tissue must not be removed until 24 hrs have passed since consent • Consent certificate should be completed in the presence of a registered medical practitioner who is required to certify in writing that voluntary consent was obtained from a competent adult and that the nature and effect of removal was explained to the person prior to obtaining consent
Adult Donors • Consent to regenerative tissue removal • Skin, bone marrow • Written consent • Blood • Oral consent • Doctors owe a common law duty of care in relation to information disclosure
Minors • Removal of non-regenerative tissue is prohibited • Regenerative tissue however can be donated to a sibling or their parents • In order for this to happen a doctor must certfiy in writing that: • Parent’s consent was obtained in their presence • Prior to obtaining consent, the nature and effect of removal and transplantation was explained to parent and child • The MP was satisfied at the time consent was given that the child understood and agreed • In situations where a child is incapable of understanding the nature, removal of regenerative tissues from a sibling is permitted where the other sibling would be likely to die • Donation of blood is permitted when: • MP advises that blood removal is not likely to be prejudicial to the child’s health • Child agrees
Incompetent Donors • Victorian Guardianship Act (1986) provides that non-regenerative tissue may not be removed without guardian and VCAT cosnent
Revocation of Donor Consent • Can be orally or written
Coronial and Hospital Post-Mortem Examinations • Autopsy involves internal and external examination of a body during which organs and tissue samples may be taken for examination and testing • A coronial order provides authority for tissue removed to be used for therapeutic, medical or scientifically purposes • Objections by next of kin do not outweigh sudden, unexpected and violent deaths • Hospital post-mortem, tissue removed can be used for transplantation, theapeutic, medical or scientific purposes if: • Deceased person has consented in writing or orally in the presence of two witnesses • Senior next of kin advises • If no one can be located after reasonable enquiry, no reason to believe that the deceased objected
Tissue Retention • Transplantation • Heart is routinely removed as part of an autopsy • Aortic valves are legally available for transplantation without discussion with next of kin • However the Donor Tissue Bank of Victoria only makes available cadaveric tissue with consent • Corneas are not routinely removed and hence consent is needed • Medical education and research • Only if it was evaluated as part of the autopsy and not • Diagnosis • Due to insufficient time at an autopsy • Need to involve treating interested clinicians • Coronial autopsies • Next of kin consent is not needed
Glossary • Brain death – irreversible cessation of all function of the brain • Medically distinct from PVS as patients in PVS remain brainstem activity • Autopsy– post mortem examination of a body involving removal and dissection of the internal organs to assess the pathological processes present in the deceased and to make conclusions about cause and circumstances of death
Risk • Obligation to disclose as limited to material risks associated with a proposed treatment or procedure • Determined from a patient’s rather than a doctor’s perspective • A reasonable person in the patient’s position would be likely to attach significance to it • Particular patient test for risk • Subjective test for each particular case • Voice for singer
Reasonable Enquiry • Explore all avenues • Hard to prove that a hospital after a few hours had made a reasonable enquiry to the whereabouts of all kin
Valid Consent • Patient must have capacity • Patient must be adequately informed • Patient must consent voluntarily
Standard of Reasonable Care • What is expected of the ordinary careful and competent doctor • Do not complete tasks that is unreasonable
Negligence • To prove negligence the plaintiff must prove: • Defendant owed a duty of reasonable care • Defendant failed to meet the relevant standard of reasonable care • Breach of this caused the plaintiff’s injuries