legal perspectives including ethical principles and exploring possible solutions. The rationale for this assignment is for the writer to develop an understanding of the ethical and legal aspects of informed consent and dementia. This will also undertake a critical analysis and review of their beliefs about informed consent and dementia in light of ethical and legal dilemmas faced when clinical decisions are made.
Nurses and healthcare professionals must possess the knowledge and skills required to adequately manage their clients and giving them up to date information. They need to be able to explore sensitively and serious issues that boarders on informed consent and client with end stage dementia. There are cases were people with dementia though not detained under the Mental Health Act (1983) are receiving on-going medication for mental condition for which they have not expressively given their consent because they lack the capacity to do so. Nursing and Midwifery Council (2008) states that, when administering of medication, it requires a thorough multi-disciplinary checks, assessment and an explicit rational which should be discussed, agreed, reviewed and documented.
The major guidance from the Department of Health (2001b), on consent, Reference Guide to examination and treatment, concentrate mainly on episodes of care and treatment as well as investigations and research. This document acknowledges that ‘Seeking and giving consent is usually a process rather than a one-off event. Informed consent is considered as very important prior to undertaking a nursing care procedures or treatment. It also serves to protect clients’ autonomy (Beauchamp and Childress, 2001). It also helps to install client’s confidence in the nursing process by limiting the perception of deception and pressure (O’Neil, 2003). It has been demonstrated that sometimes even the most begin nursing process could be resisted by clients unless informed consent has been sorted and obtained in an appropriate manner.
In other to meet the ethical obligations, health care professionals have a moral obligation to identify the best treatment for each client based on available medical evidence and to discuss with patients, and the benefit and potential risks. It is generally accepted that medical informed consent is ethically, morally and legally mandated by the responsibilities following from the patient to nurse relationship and it was also highlighted that informed consent can help to limit potential form of cases by lack of informed consent (Patrick, 2008).
However, this is an action based note on trespass but on negligence, there are four main elements of negligence (duty, breach, causation and harm) which have to be show by the applicants on a balance of expectation. In order to establish a breach of duty of care, the patient would have shown the health professional, providing necessary information for him/her to followed the ‘Bolam test’ (Dimond, 2005). The ‘Bolam test’ (Bolam vs. Friem Hospital Management Committee, 1957) is used to determine if there is a case of negligence. The test states that, as long as a doctor or nurse acted in accordance with the practice guideline (NMC, 2008), he/she is not guilty of negligence (McParland et al, 2000).
According to Dimond (2005), there are two ways in which consent can be obtained and they are implied and expressed consent. Implied consent is non-verbal, it can be implied when the nurse or the health care professionals seek consent from the client/patients to carry out a procedure and the patients holds out his/her arm. However, this type of consent is non-verbal; it could be misunderstanding regarding the intended procedure. Therefore, health care professionals are also advised to obtain oral consent (Dimond, 2005). Expressed consent can be given in writing or verbally. It is an advantage in some instances to obtain written consent in case there is a future dispute relating to what the patien consented to. It is however very important to obtain consent before treatment regardless of the type of consent (NMC, 2008). The importance of obtaining consent among others include: preventing law suits; it declare and safeguards the autonomy of the patients; informed participation in health care can enhance and maintain good quality of life (McParland et al, 2000).
Informed consent can be defined in two elements; information and consent components (Beauchamp and Childress, 2001). Information components refers to disclosure and comprehension of what has been disclosed, while the consent component the patient can only gives informed consent to an intervention if he/she is component to act, receive a thorough disclosure, is able to comprehend the disclosure, is able to comprehend the disclosure and act voluntarily while consenting to the intervention. In other words, health care professionals (nurse) are expected to give acceptable amount of information to a patient/client before carrying out treatment procedure which should include the risks associated with that procedure as this will enable the patient/make to make decision whether to accept the treatment or not (Beauchamp and Childress, 2001). To act within the spirit of the above policies and guidelines patients need a wide range of information on which to base their decision: benefits and risks, positive and negative effects, treatment strategies and rationales for treatment (Harris et al, 2002).
Information giving and seeking consent is essential to ensure that patient/clients consent is obtained and not merely assumed. When a patient is unable to consent, care should be administered to his/her best interest. The professionals and nurses must show that their decisions are compatible with the Human Rights Act (1998) set out in the articles of the convention. In an article on exploring the use of ethical frameworks implies that these ethical issues allow the practitioner to investigate contributory issues affecting dilemma which may not be obvious (Adam, 2004). The patient/client has the legal right to refuse treatment if it can be proved that they lack the mental capacity to make such a decision (Walker, 2006). In some conditions, doctors can make such decision to treat them without their consent. While in that case, patients/client are in a situation were they having the mental capacity to make their own decision to refuse or to accept treatment. Therefore, consent is an important principle in the relationship between patients and nurses (O’Reilly, 2000).
Rumbold (2004) emphasized the fact that, ethical theories may not provide answers to a dilemma, but it could offer the user guidance for working through predicaments. Ethical decision making is a process in which the moral values of individuals and or groups are brought to bear on the reasoning that leads to particular choice (Walker, 2006). Dewing (2001) suggested that, for healthcare executives to balance effectively the needs and interest of individuals, organisations and society, decision-making is a vital part of care delivery process.
Harris et al (2002) stated that, there are three fundament conditions that need to be satisfied in order for consent to be valid: the provision of information needed to make a decision, the voluntary acceptance of treatment or the absence of any pressure or force, and that person is considered capable or competent to give consent. Autonomy can be regarded as the individual’s right to self-determinism i.e. the right to choose and to make decisions that concern their life. Also the respect for autonomy is a fundamental principle which legally and ethically influences healthcare decisions, such as those concerning informed consent (Chaloner, 2007).
This question is largely concerns the best system for protecting patients from negligence and harm. When a patient’s rationality is compromised by end stage dementia, a patient’s competence to consent may be diminished or rather absent. Who should decide for incompetent patient? Most of us think first of families as the proper decision makers, because thet have the deepest interest in protecting their incompetent members. When a patient is considered incapable of providing consent the nurse should be involved in assessing the patient’s care or treatment. According to Nursing and Midwifery Council (2008), the nurse must act in the best interest of the patient; especially in cases were the patient is incapable of making their own decisions in which case the Mental Capacity Act (2005) should have an impact.
The Mental Capacity Act (2005) which was implemented in 2007 sets out a key principles applying to decisions and actions taken under the Act. A patient must be assumed to have capacity until it is proved otherwise. The Act requires “all practicable steps” to be taken to help the patient. A patient may have a living will or advance directive to the effect that if such circumstances should happen he/she would not wish medical interventions to keep him/her alive for a life of suspect quality. There are some difference of opinion as to the legal status of advanced directives but the majority of opinion is that binding under common law and has remained so until 2007 when the Act of Parliament in the Mental Capacity Act will be enforced.
The term ‘best interest’ covers all aspects of the patient’s well being (DoH. 2001b). Nurses should therefore take into account issues such as patient’s belief, values and preferences and perceived quality of life when making a decision on their behalf. Ethical principles are very important in the nursing profession and can be discussed in relation to informed consent. Manisty & Waxman (2003) describes the most influential figures in the field of biomedical ethics are the two American ethicists Beauchamp and Childress (2001). In their literature, they argued that it is possible to identify four key ethical principles such as respect for autonomy, non-maleficence or avoidance of doing harm, beneficence or seeking to do good and justice. They supplement these four key ethical principles with four rules which are: veracity, privacy, confidentiality, and fidelity.
Seedhouse (1998) describes Beauchamp and Childress “Four principles” as simple and effective teaching tool for use in healthcare dilemmas. He was however criticized the fact that, the principles were vigorous and lack definition, and allowing the framework to be vulnerable to a wide interpretation. Often these situations may be construed in terms of levels of risk, which cross a threshold of unacceptable danger (Woods & Pratt, 2005). It has also been argued that patient advocacy, defending the rights of the vulnerable patient, or acting on behalf of those unable to assert their rights, is a requirement of beneficence (Thompson et al, 2006).
Beauchamp and Childress (2001) acknowledge acting in a way that will benefits a patient/client is an important ethical principle in health care. In addition, beneficence in treatment decisions is a dilemma that often revolves around what course of action will be the best interest of the patient. These ethical dilemmas can be much contradicted relating to some patients conditions and it is difficult to understand how death can be a benefit to some patient’s in his/her best interest. This is further supported by the work of Randall & Downie (19960), which showed that society places great emphasis on maintaining life. They have a moral obligation to determine whether it is the quality or quantity of life that is essential. It is a dynamic process which actively seeks out the most appropriate treatment for the patient’s interest (Tschundin, 2003).
In conclusion, Nurses are advice to participate in the informed consent process to provide patients with the best treatment available by sharing decision-making and limiting any potential for liability. The Nursing and Midwifery Council (NMC, 2008) states that, as a registered nurse you are personally accountable for your practice and adherence to stipulated guidelines which offer protection for both the nurse and patient. This essay has helped the writer to gain knowledge of ethical and legal dilemmas faced in practice, this will enable the writer to therefore to implement this knowledge in future practice.