Discuss the ethical justification for informed consent The nursing and midwifery council (NMC) (2002) state that "as a registered nurse... you are personally accountable for your practice. In caring for... clients you must... obtain consent before you give any treatment or care." (p.
2). Failure to obtain consent may result in legal action due to battery or trespass against the person, (Dimond, XXXX). Within ethics, it is clear that no area stands alone, but many positions build one upon another. This is clear in informed consent which relies on the concept of autonomy. Indeed other ethical positions such as beneficence, which may play a large part in acting in a 'persons best interests' need to be addressed, a subject directly affected by consent and autonomy.
While the concept of informed consent affects issues relating to medical records or disclosure of information, it is felt that these areas should lie outside the scope of this text. Instead, the text will focus upon treatment for mental disorder. The Mental Health Act (1983), (the ACT), lays down provision for the treatment of mental disorder within part IV; consent to treatment. This is covered in paragraphs 16. 1 - 16. 44 of the Mental Health Act Code of Practice (the CoP) (Department of Health & Welsh Office, 1993).
This publication will be utilised extensively and so the reader would be advised to have a copy for reference. The purpose of this text to discuss the ethical justification for informed consent by examining issues arising from published materials. The role of the nurse and reflections of and by the author will be addressed. Due to the extensive reading material utilised, this text will contain both references list and bibliography.
Definitions, capacity and competency Whilst the topic of informed consent has serious implications for law, ethics and nursing practice, it has been asserted that the term has become somewhat confused due to lack of knowledge and overuse. This may have been the result of lack of intial clarity and confusion within mental health practice as well as the ever changing context in which it is discussed, (Wallace, 1995). However, Wallace (Ibid) gives no evidence to support his claim, though the author agrees with this assertion that many healthcare workers appear confused as to what does and does not constitute informed consent and often substitute consent with assent; a simple verbal agreement, (Aveyard, 2000). As stated in the introductory paragraph, it is the duty of the nurse to gain consent for any treatment administered, (NMC, 2002), this is defined by the CoP as "the voluntary and continuing permission of the patient to receive a particular treatment," (p.
67). This of itself however does not constitute informed consent, and so the citation goes on to say, "based on an adequate knowledge of the purpose, nature and likely effects and risks of that treatment including the likelihood of its success and any alternatives to it. Permission given under unfair or undue pressure is not 'consent'." (p. 67). This issue of coercion and consent will be examining in more detail later.
The concept of informed consent is predicated on a further concept, that of, capacity; which is what makes the consent valid. The elements of capacity are outlines in paragraph 15. 10 of the CoP. Paragraph 15. 9 of the CoP makes the point clearly, that the responsibility of gaining informed consent initially lies with the doctor and is a matter of their clinical judgement. In effect this may appear to make the doctors both the judges and gaol ers of the ACT and its implementation in practice.
In contrast, the USA allows for competency hearings to be held in the presence of a judge, to ascertain capacity and also provides for an impartial decision to be made, (Adshead, 1998). In an unpublished discussion (Holmes, 2003) it was asserted that in practice the concept of consent is discussed openly, but the discussion of capacity or competency, a feature underlying informed consent is very rarely addressed. Indeed in the same discussion it was asserted a doctor had made comments that amounted to the belief that competency was being determined on an ad-hoc basis by individual practitioners. Furthermore, that many doctors disagree with one another as to whether an individual patient has the competency to give informed consent. This discussion highlights a serious issue - lack of clarity in determining whether a person is competent to give informed consent. In researching this assignment the author became very aware that there exists a negligible amount of writing on the subject within mental health.
However, one tool was found which was of interest, this was the Hopkins Competency Assessment Test, (Janofsky et al, 1992), though this tool was not known of in the above discussion. The tool itself examines the ability of the individual to remember, understand and discuss a piece of text. Essentially it finds competency as a act of rationality and cognition. Autonomy vs. Best Interests During clinical placement, the author has observed examples, whereby an informal patient with psychotic beliefs has become increasingly disturbed. The decision was taken as a team whether to medicate against their wishes.
The following section deals with the ethical implications of this action or inaction. As a (student) nurse, it is expected that you will comply with the code of professional conduct, (NMC, 2002) at all times. This means that you are personally accountable "for your actions and omissions", (Ibid, p. 3). In light of the above, and the example from practice given it can be seen that this presents an ethical dilemma. As a nurse, the situation allows for the person to refuse medication (as is their right as an informal patient) or to forcibly medicate, over-riding their right to informed consent.
For the nurse, this is a practical problem, seen often within psychiatric settings. While the nurse is expected to act as an advocate for the client, allowing them to exercise their autonomy, in this instance, the author believed at the time, and still believes it is better to act in their best interests, adopting a paternalistic approach, (Rudnick, 2002; Stagno & Agich, 1997). In acting in a paternalistic manner, it is hoped that the persons autonomy may be restored more quickly. The action of acting in the patients best interests ensures that the nurse fulfils the criteria for care. Acting in this manner is better in the author's opinion, than no action at all, (NMC, 2002). While in this instance, the patients right to informed consent was over-ridden, it should be noted, as observed by Adshead (1998) that "not all psychiatric patients are incompetent to make decisions for themselves," (p.
556). Medication, information and informed choice The right to give informed consent as brought most obviously into focus when the consent is not given, indeed Lowry (1998) states "the right to refuse is the concept of informed refusal," (p. 283). Para. 3. 7 of the Code of professional conduct states that "the principles of obtaining consent apply equally to those people who have a mental illness." (NMC, 2002, p.
5). For the (student) nurse, the act of gaining informed consent may be complex. Issues arise as to exactly how much detail to give with regard to medication to offer. In an effort to explain this problem, the Department of Health (DoH) (2001 a) put forward the concept of sufficient information, making each persons demands unique to themselves.
The information given has to be in a form that is understandable, (NHS Executive, 1997). This ensures that the consent given is 'real'. The DoH further state that the 'patient wishes to be well informed." (Ref) The author asserts that while their may be very good examples of prescribing, they have tended to notice in practice that many doctors offer very little information regarding medication and its effects. This is in stark contrast to statements made by the DoH. As a (student) nurse, the author made every effort to educate clients regarding medications. While giving information to clients within psychiatric services may cause problems, this cannot justify with-holding relevant information.
A practical example of this was seen with a patient prescribed and agreeing to take clozapine without being told of the need to have regular blood tests. For the nurse as for the doctor, the responsibility exists that clients are educated to the benefits and risks as well as rationales and alternatives of any treatments offered. Indeed, without the options of alternatives, the client cannot make any choice, informed or otherwise. Many practitioners are put off offering too much information for fear that it may cause the client to become non-complaint, (Brabbins, 1996; Perkins & Repper, 1999). It is seen often within psychiatric services that the client is offered medication and occasionally refuses. Occasionally the client will refuse and so will begin a series of offers, which may culminate in the medication being offered by another route if compliance is not achieved! At this point the client may take the medication and staff may make the presumption that they have consented.
However, this is not the case. The use of veiled threats and coercion negates the possibility of informed consent having been given, (DoH, 2001 - consent; Lowry, 1998). Indeed the issue of power and control may be used as a leverage method, for example the threat of a doctor being called to instigate statutory powers, (Brier-Mackie, 2001; Repper & Perkins, 1999; Olofsson & Jacobsson, 2001). Informed consent: a framework for practice For informed consent to be truly given criteria must be met. These include, an explanation of the treatment, risks and benefits, alternatives. This must be coupled with an understanding of the procedure, a working memory for the action and most importantly it must come from a competent person (a person of sound mind - as far as the treatment is concerned).
Further to this it must be voluntary, given without undue influence or persuasion, (Usher & Arthur, 1998). When obtaining informed consent it should be remembered that this consent can be withdrawn at any time, without reason, (DoH, 2001). For clients with mental illnesses it is clear that consent may be forthcoming at some times and not others. It should also be borne in mind that the competency to agree to such treatments may also vary over time, though the NMC assert that the nurse 'should presume the client has capacity to consent' (p. XX). Usher & Arthur (1998) developed a model called 'process consent'.
This is based on the principle that people change over time. This means that consent cannot be presumed based on previous consent. Further, as competency may change, education and dialogue will need to take place between nurse and client. This has many benefits as the discussion may allow for the furthering of the therapeutic relationship allowing for deeper exploration, (Varcolis, 2000). This may have an impact upon future adherence to medication and building of trust as equals, rather than the imbalance of power which often exists in the nurse-client relationship, (Lowry, 1998).
Reflections and conclusions The author has seen in practice examples that both encourage the right to informed consent and other practices which appear to make a mockery of the concept. While it is clear that the rights of the patient are paramount and borne out in new legal frameworks, such as the European Convention on Human Rights, (Persaud & Hewitt, 2001). There still arise times when the nurse must exercise their legal and moral responsibility to do what is right, in the eyes of the law, the public and themselves. This comes into focus sharply when a persons own rights are restricted.
Bests interests and acts of paternalism, while a necessity within the nursing role in psychiatric settings should not be construed as being the norm and all efforts should be made to gain the consent of the client, (Chan, 2002). The author does however see a drawback to all of this discussion. While a client may be discharged from a hospital setting with competency, capacity and informed consent intact, the question may be posed, if they are well then how should we react if they choose to withdraw consent and willingly become non-complaint? As a nurse, the requirement to act in the patients best interest could be problematic in this area. Under law, the option to forcibly medicate within the community is not an option, with the exception of s.
25 aftercare provisions. However, these are only enacted when a client has been subjected to s. 3 of the MHA 1983. Currently, the option to effect a treatment order on a patient in the community is still in the formative stages, though presumably close to finalisation. Chan (2002) makes the observation that the proposed changes to the MHA may be more to do with compliance than a serious change in the functioning and implementation of the act itself.
Whatever changes occur in relation to the MHA and treatment of the client, the concept of informed consent together with its associated ethical problems will still drive the law, nursing practice and the ethical debate. Indeed this text has shown to the author the vast distinction between ethics as a theoretical subject and the role of ethics in practice. References Adshead, G. (1998) Ethical and conceptual issues in consent to psychiatric treatment and the assessment of competence. Current opinion in psychiatry, 11 (5) Aveyard, 2000 Brabbins, 1996 Brier-Mackie, 2001 Chan, 2002 DoH & WO 1993 (DoH) (2001 a Dimond Holmes, 2003 Janofsky et al, 1992 Lowry (1998 NHS Executive, 1997 NMC 2002 Olofsson & Jacobsson, 2001 Perkins & Repper, 1999 Persaud & Hewitt, 2001 Rudnick, 2002 Stagno & Agich, 1997 Usher & Arthur, 1998 Varcolis, 2000 Wallace, 1995.