Every consumer must be presumed to be competent unless there are reasonable grounds for believing that they are not. The common circumstances where a patient is not competent are where they are a young child, where they are unconscious, or where they are suffering from dementia, or have an intellectual disability.
The difficult cases are those who are conscious and would normally be competent but may not be currently due to head injury or alcohol and or other drugs
We might prevent someone from going home if
eg "Discussed with patient, told him of the possibility of EDH etc. He displayed good understanding of the condition, the risks and the options ...."
"Discussed with patient, clearly impaired, unable to repeat things I had just told him, to understanding of the risk of his condition ..."
Patient is not required to "sign them self out against medical advice"
NZ Health and Disability Code Section 7:
3) Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence.
4) Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where -
Who can give consent on behalf of another?
The only individuals who are entitled to grant consent on behalf of a patient are
legal guardians (welfare guardians under the Protection of Personal Property
Rights Act, or parents/guardians under the Care of Children Act 2004 or someone
with enduring power of attorney). A spouse or next of kin cannot consent to or
refuse medical treatment on behalf of an incompetent person unless they hold
enduring power of attorney or are their welfare guardian. It is important to ask
someone who has enduring power of attorney, if they have powers in relation to
property, or personal care, or both.
If, in emergency, immediate action must be taken to preserve the life or health
of a patient, then you can provide the key services without consent. It is expected
that only those treatments that are necessary to preserve life or health will be done
at this time. Any procedure that can reasonably be delayed should be delayed until
an opportunity can be given for the patient to consent.
Care of Children Act 2004
All persons over the age of 16 are regarded as adults for the purposes of determining competence to give informed consent. People under the age of 16 are not automatically prohibited from consenting to medical, surgical, or dental procedures so judgment is needed in each instance.
It also covers how the consent of children should be obtained for medical procedures and the right of health practitioners to administer blood transfusions to children without consent in certain conditions (to save life being
the principal condition)[See Blood Product Transfusions for Jehovah's Witnesses] Section 38 of the Act addresses the issue of obtaining consent for abortion for children (a female of any age has the right to consent to or
refuse to consent to any medical or surgical procedure for the purpose of terminating her pregnancy).
All the issues surrounding consent for the treatment of children have not been
settled and doctors will still face dilemmas. New Zealand has had three high
profile cases since the year 2000 where parents withheld consent for medical
treatment for their children under circumstances that resulted in all three children
dying of their diseases. The way the police and the courts treated these cases was
inconsistent and in the first of these cases, the lack of a police prosecution
followed intense nationwide public support for the parent’s decision to decline to
accept conventional medical treatment. In the other two cases the parents were
prosecuted. The courts imposed a suspended sentence on the parents in the second
case, and sentenced the parents in the third case to 5 years in prison. It would
appear, for the time being at least, that the ability to persuade the court will be the
most significant factor in determining outcomes.
Doctors should regard court orders against parents as an absolute last resort, and
all other means to persuade parents should be exhausted first. Professor Don
Evans, director of Otago University’s Bioethics Centre has stated “There is a huge
price to be paid for that last step. It pretty well destroys any collaboration for the
future between parents and health carers”. If you are likely to find yourself in
conflict with a child’s guardian about the treatment of serious life threatening
conditions, you should read this new legislation and seek advice from the medical
protection society, lawyers, or employers. There are situations where doctors and
care givers may jointly seek a court order for consent, for example to terminate
treatment to allow a patient to die peacefully, or sterilisation of a patient who is
unable to consent but for whom the family and other carers, supported by medical
opinion, request the operation to enhance the quality of life or to prevent
deterioration in physical or mental health.
In summary, informed consent, long an ethical obligation, is in
New Zealand a legal requirement. It is one of the cornerstones of good patient
care, and recognises that the doctor patient relationship is for the benefit of the
patient. Not all issues in informed consent have simple solutions. Consult with
other doctors and professional advisers when you are uncertain.
Ethics Toolkit by Prof M Ardagh, Christchurch ED http://www.nursingcouncil.org.nz/Ethics%20toolkit%2008.pdf Accessed 17/1/09
New Zealand Medical Council: Cole’s MEDICAL PRACTICE IN NEW ZEALAND 2009 http://www.mcnz.org.nz/portals/0/publications/coles/cole%20chapter%2012.pdf
NZ Health and Disability Code 1996 http://www.hdc.org.nz/theact/theact-thecodedetail Accessed 17/1/09