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Legal responsibilities:consent in emergency treatment
Whitcher J (2008) Legal responsibilities: consent in emergency treatment. Nursing Standard. 23, 9, 35-42. Date of acceptance: February 1 2008.
The issue of consent is complex but fundamental to the provision of medical care. Most patients who attend an emergency department will be able to make their own decisions regarding the care they receive. Patients who are seriously injured or have reduced or absent capacity may have to rely on healthcare professionals to make decisions on their behalf. Healthcare professionals must ensure that they act as patient advocates and that medical care and treatment are carried out in patients’ best interests. This article addresses issues relating to consent in emergency departments.
John Whitcher is practice educator, Accident and Emergency Department, Royal Gwent Hospital, Gwent. Email: Jbwhitch@aol.com
Consent; Emergency nursing; Medical case law; Patients’ rights These keywords are based on the subject headings from the British Nursing Index. This article has been subject to double-blind review. For author and research article guidelines visit the Nursing Standard home page at nursingstandard.rcnpublishing.co.uk. For related articles visit our online archive and search using the keywords.
issue. Those who are unable to provide consent will present the clinician with potential legal and ethical dilemmas. Because of the complex nature of medical law, the emergency department is considered the most dangerous part of a hospital in medico-legal terms (Knight 1992). It is therefore imperative that healthcare professionals in this area of practice have an up to date working knowledge of the law. The intricacies and relevance of consent are often overlooked by nurses. This is because obtaining consent was previously viewed as the responsibility of doctors and there was little agreement on the definition of capacity in legislation. Before the Mental Capacity Act 2005 nursing and medical professions had to refer to case law for guidance. The Nursing and Midwifery Council (NMC) (2008) states that: ‘You must ensure that you gain consent before you begin any treatment or care.’ Consent is necessary for all aspects of nursing care and therefore knowledge of the law in relation to consent is essential.
MOST PATIENTS ATTENDING an emergency department are able to make decisions regarding their care unassisted; however, some individuals may not have the ability or capacity to make such decisions, possibly as the result of an organic disorder of the brain, poisoning, hypoxia, hypovolaemia or head trauma. An emergency department is an unfamiliar and hostile environment for most patients. It is a complex and frightening place in which patients may no longer feel in control of the care they receive (Jones et al 2005). Patients may have to undergo invasive tests or treatments and consent is paramount. The provision of health care is based on the idea of consent (Hutchinson 2005), which is a complex NURSING STANDARD
The development of medical case law
In law there is no single act of parliament that sets out the principles of consent. The courts, through common law, have established legal rules in the form of case law. As a result of a number of cases that have been heard in the high courts, such as Bolam v Friern Hospital Management Committee , Re C (adult: refusal of medical treatment) , Chester v Afshar  and Chatterton v Gerson , a set of legal principles has been established. These cases have provided legal direction because the judgments drawn from the facts of the case have authoritative precedent, which means that they are generally binding and have to be followed in future cases. november 5 :: vol 23 no 9 :: 2008 35
The acts. First. and in the next few years English courts may begin referring to Scottish cases and vice versa for guidance. Dame Elizabeth Butler-Sloss confirmed that: ‘A seriously disabled patient has the same rights as the fit person to respect for personal autonomy. in the case of Re W . This act or omission may lead to damages being claimed in a civil court. the tort of battery may be more appropriate. the principles of patient autonomy and the right to have decisions respected have provided patients with the opportunity to decide what. The doctrine of precedent – where a judgment made in one case will have to be followed in similar cases – also applies.p35-42w9 3/11/08 11:23 am Page 36 art & science legal issues The Mental Capacity Act 2005. outline the common law principles that relate to capacity. if the act was performed in the best interest of the patient but was non-consensual. Wales and Northern Ireland addresses the care of those who possibly have no interest. Consent Consent involves an autonomous individual who has mental capacity giving his or her permission for touching to take place. & The case of Re B (adult: refusal of medical treatment)  highlights how some doctors may still practise paternalistically. such as the patient in a permanent vegetative state (PVS). It may be the case that the patient is unable physically to enforce his or her refusal. 36 november 5 :: vol 23 no 9 :: 2008 . There is a serious danger. The general principles are that the patient must be able to take in and retain the information provided. The Adults with Incapacity (Scotland) Act 2000 outlines that any action or intervention must be to the benefit of the patient. A slight difference in the acts is that the Mental Capacity Act 2005 is based on an assessment of what intervention is in the best interest of the patient. However. and when. medical examinations or treatments take place. This does not apply in exceptional circumstances such as during an emergency. treatment. Brazier and Cave (2007) suggest that not even the most paternalistic doctors would now suggest that all patients should be compelled to accept whatever treatment is suggested. by allowing the patient to provide or refuse consent. A tort is a legal term for a wrongful act or submission. However. are based on the interpretation of Re C (adult: refusal of medical treatment) . the requests of B were ignored until a High Court ruling declared that a battery was being committed against the patient. as highlighted by Mason and Laurie (2006). for example as a result of paralysis caused by a cerebral vascular accident (CVA). in which case the court can refer to the judgment but does not have to follow it when issuing a judgment on the current case. the healthcare professional must not treat the individual any differently from someone who is physically able to express his or her refusal. which states that: ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body. which applies to England. Second. Failure to gain consent may lead to a healthcare professional being prosecuted following allegations of criminal battery if the act has been hostile. B had an advanced directive that requested the treatment to be stopped. of a benevolent paternalism which does not embrace recognition of the personal autonomy of the severely disabled patient’ (Re B (adult: refusal of medical treatment) ). Wales and Northern Ireland. This definition of consent is supported by the famous legal definition provided by Judge Cardozo in Scholoendorff v Society of New York Hospital . It is important that healthcare professionals do not assume that because a patient has a disability he or she is unable to consent to. B was paralysed as the result of a spinal cord haemorrhage and was being mechanically ventilated. The precedent may be binding. The patient who is in a PVS will not usually benefit from a treatment that prolongs life. European Community law and the Human Rights Act 1998. exemplified in this case. This touching may be to perform an investigation or for more complex surgery to be carried out. and the Adults with Incapacity (Scotland) Act 2000. believe the information and have the ability to assess the information and make a decision. This right to self-determination is supported by English law as expressed by Lord Steyn in Chester v Afshar : ‘In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed’. concluded that consent serves two purposes. the act of gaining consent leads to the patient being informed regarding his or her medical or surgical problems and helps to develop NURSING STANDARD The move away from paternalism For many centuries the practice of medicine was based on the paternalistic principle that the doctor knew best and treatment was often imposed on patients with varying levels of consent. and a surgeon who performs an operation without the patient’s consent commits an assault…’ Lord Donaldson. This means that the law in England. Scottish law is influenced by the English legal system. However. or refuse. that is it must be followed or persuasive. the legal justification for giving or withholding medical treatment is established.
this means explaining the procedure in a language at a level that the patient will understand. It is possible that some patients may have the capacity to consent to certain minor procedures. even those who are seriously ill. Retain the information provided. and such decisions will influence any immediate care and treatment. treatment or care to be given. In an emergency department in England. Conditions that are common in emergency nursing and may affect the first-stage approach include physical or medical conditions that cause confusion (for example. If there is a disturbance. Procedures that carry greater risk would require a greater level of discussion to demonstrate that a patient truly did have the capacity to consent to such a procedure. sign language or any other means to aid this process. This will often be reinforced with simple diagrams and the patient will be given time to think about the information provided and repeated explanations will be given. the greater the capacity required. The more serious the decision. the patient will fail stage one. If there is no disturbance. november 5 :: vol 23 no 9 :: 2008 37 . Adequately communicate his or her decision. This idea was developed further by the Court of Appeal in Re MB (an adult: medical treatment) . which assesses the patient’s ability to communicate his or her decision (Box 1). Failure to demonstrate the presence of capacity would render the patient unable to provide valid consent. NURSING STANDARD but major procedures may require a more in-depth evaluation of the risks. It is essential that healthcare professionals understand that the issue of capacity underpins the process of consent. Capacity The patient must have the capacity to consent to the investigation. retain and evaluate information provided to establish the advantages and disadvantages of treatment and reach an informed decision. it will be presumed that the patient has the capacity to consent. The second stage assesses whether the patient believes the information. if necessary. The individual must be supplied with relevant information to assist decision making and whether to grant or withhold consent. The patient may have an independent mental capacity advocate – a person appointed externally to support the patient who lacks capacity – to act on his or her behalf. BOX 1 Key elements of capacity The individual must demonstrate the ability to: Understand the information provided. Stage one involves questioning whether there is a disturbance of the brain or mind that would impair functioning. This test is based on the three-stage test as highlighted in the case of Re C (adult: refusal of medical treatment) . In practice. and the risks associated with accepting and refusing to undergo the proposed treatment. The Department of Health (DH) (2001) Reference Guide to Consent for Examination or Treatment makes it clear that when the patient comes to a decision he or she must understand the possible consequences of accepting or refusing treatment. hypovolaemic shock or cerebral hypoxia). The first stage questions whether the patient is able to take in and retain the information provided. For capacity to be present the patient must be able to understand. Section one of the Mental Capacity Act 2005 states that every adult must be presumed to have mental capacity unless proven otherwise. The patient must come to a decision relatively free from any coercion or duress. The act recommends the use of speech. which may be beyond the ability of the patient.p35-42w9 3/11/08 11:23 am Page 37 a trusting patient/doctor relationship. This advocate puts the patient in the same position as a person with capacity and allows the individual to be treated fairly and equally. the nature of the treatment. Weigh up the information provided. which highlighted that the patient must understand the reason for the treatment. Section two of the Mental Capacity Act 2005 adds a fourth stage.’ The Mental Capacity Act 2005 makes it clear that the patient’s capacity to consent must not be presumed absent until all attempts to assist understanding have failed. A two-stage approach must be taken to assess the patient’s capacity (Department for Constitutional Affairs (DCA) 2007). It must be stressed that all patients must be assumed to have the capacity to consent to all procedures.Wales or Northern Ireland a nurse may be called on to make prompt decisions about whether or not a patient has capacity in line with the Mental Capacity Act 2005. For consent to be valid three elements must be present: The patient must have the mental capacity to consent. This was supported by Lord Donaldson in Re T (an adult: medical treatment) . who highlighted that when the patient made his decision relating to the medical treatment he: ‘had a capacity which was commensurate with the gravity of the decision which he purported to make. The third stage questions the patient’s ability to weigh up the information to come to a decision.
The second stage assesses the patient’s ability to make a specific decision and how the disturbance of the brain or mind affects that decision (Box 2). This patient would fail stage one of the capacity assessment because significant blood loss and hypoxia would alter his brain function. the case of Re T (an adult: BOX 2 Clinical scenario 1 – assessing capacity A young man has been stabbed in the abdomen. There will always be situations in clinical practice when a doctor will to some degree influence the patient’s decision. in practice. It is clear he is able to make simple decisions regarding cannulation and blood pressure monitoring. In this situation it may be appropriate for the doctor or nurse to use a certain amount of persuasion to encourage the patient to consent to having the wound explored before being discharged home. The Court of Appeal ruled that Miss T could be given the blood transfusion. long-term brain injury and mental health problems may affect the patient’s ability to pass stage one. Following a visit from her mother Miss T. The patient may face the possibility of long-term disability and a significant risk of serious infection if the wound is not treated appropriately. BOX 3 Clinical scenario 2 – encouraging consent A man has been attacked by a dog. CVA or problems with glycaemic control). In the case. In effect the patient’s choice may to some extent NURSING STANDARD 38 november 5 :: vol 23 no 9 :: 2008 . Patients will often ask healthcare professionals for advice on what they would do in their situation (Box 3). the patient fails stages one and two. however. Lord Justice Staughton. delirium possibly associated with alcohol withdrawal or fever. So. using an assessment of his capacity. medical treatment)  demonstrates the need for consent to be voluntary. the hospital felt it could not lawfully give her a life-saving blood transfusion. He is conscious but has sustained significant blood loss and requires emergency surgery. This requirement. along with the pain and discomfort Miss T was experiencing.p35-42w9 3/11/08 11:23 am Page 38 art & science legal issues decreased or loss of consciousness (for example. The patient feels a dressing and antibiotics would be appropriate. The dog bite has exposed and possibly damaged ligaments in his hand. This was addressed in a quote from Lord Donaldson in Re T  who suggested that doctors should ask themselves: ‘Does the patient really mean what he says or is he merely saying it for a quiet life. would render any consent invalid and subsequent touching based on that consent would become unlawful. but agreed to alternative measures being used. The doctor or nurse would have a duty to engage in frank discussions with the patient. The Mental Capacity Act 2005 Code of Practice (DCA 2007) highlights that dementia. confirmed that: ‘a patient’s decision to consent to an operation will normally be influenced by the surgeon’s advice as to what will happen if the operation does not take place’. Therefore. As a result of Miss T’s refusal to accept treatment. to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think and decide for himself?’ This question could apply to the patient who has a persuasive family which is desperate for any medical treatment to be carried out that may prolong life. There is also the possibility that a doctor may use the patient to further his or her surgical experience. Miss T had been brought up by her mother as a Jehovah’s Witness but was not an official member of that church. Miss T’s father and boyfriend sought a declaration from the court authorising the administration of a blood transfusion. in the case of Re T . refused all blood transfusions. It is therefore imperative that healthcare professionals ensure that patients provide consent of their own volition. The court came to the decision because it was felt that the mother had had an overbearing influence on Miss T and had subsequently influenced her decision. a certain amount of influence may be considered acceptable as long as it does not unduly influence the patient’s decision. verbally and by signing a form. because refusing appropriate treatment would not be in the patient’s best interest. Miss T was pregnant and had been involved in a road accident. However. His ability to pass stage two may fluctuate with time. The patient had a haemorrhage following the Caesarean section. if not met. allowed her mother to influence her choice and subsequently refuse medical treatment. The issue of voluntary consent is infrequently tested in law. and the symptoms of alcohol or drug use. & Voluntary consent Consent must be voluntary and patients must be free from coercion and not placed under duress. when surgery is discussed he does not understand the seriousness of his injuries as a result of the hypovolaemic shock. The doctor may place pressure and coerce the patient into accepting treatment so that the doctor has the opportunity to perform an unusual or complex procedure. so the emergency procedure is carried out in the patient’s best interest. The traumatic event. Miss T’s unborn child was to be delivered the following day by Caesarean section. In clinical practice there may be times when consent is not free from coercion. concussion following a head injury.
In relation to consent the doctor or nurse must ensure the information provided reaches the same standard as another person who may be performing a similar task. When the patient regains consciousness it november 5 :: vol 23 no 9 :: 2008 39 . The patient had not been informed of the risk. This is supported by the comments made in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital  by Lords Diplock and Bridge. with the patient regarding his or her religious and cultural beliefs to ascertain whether particular additional procedures would be permitted. In clinical practice it is established that the patient should be informed of the nature of the proposed treatment. It is also important to ensure the patient is informed of the consequences of refusing consent. The term ‘informed in the broad terms’ is the legal standard. In the case of an unconscious patient this capacity will be lost and the individual’s ability to provide voluntary consent will be absent. However. For an unconscious patient. friends or an independent mental capacity advocate. They should receive the same information as the patient would have if he or she had the ability to retain. it is important to establish whether the procedure is in the patient’s best interest. The concept of providing information was further developed in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital . as in the case of Chatterton v Gerson . for example. By informing relatives or friends in this way. the healthcare professional must use the Bolam principle. taking into account the best interests of the patient. In this case the plaintiff received a pain controlling injection. is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment’ (Sidaway v Board of Governors of the Bethlem Royal Hospital ). it may be necessary to give the patient a blood transfusion if he or she experiences a serious haemorrhage. The term comes from the case of Chatterton v Gerson . A patient with fluctuating capacity would still require an explanation of any proposed treatment and depending on his or her capacity at the time may be able to consent to minor procedures. This encompasses the nature of the medical or surgical procedure and its purpose. which left her with a numb leg. important aspects of the patient’s social and religious life may become apparent. It is clear that for a patient to provide consent freely without duress he or she must have capacity. subject to his overriding duty to have regard to the best interests of the patient. the final decision to accept or refuse treatment must come from the patient. and any possible alternatives to the proposed treatment. who highlighted that the patient should receive a full and truthful answer. for example to repair a fracture or to remove a tumour. investigative or palliative. However. It is therefore essential that the healthcare professional has discussions. It was confirmed that: ‘the duty of the doctor in these circumstances. It must be stressed that the term ‘informed consent’ does not exist in the English legal system (Herring 2006). The potential effects and material risks of the treatment should be made clear as knowledge of these facts may discourage the patient from providing consent. For consent to protect the healthcare professional from claims of negligence. Judge Thorpe. The DH (2001) states patients must be NURSING STANDARD informed of any additional procedures that may be required while the initial treatment is being carried out. stated that the patient must also understand the effect of the proposed treatment. Depending on the gravity of the treatment the patient may need time to process the information if circumstances permit. understand and process information. Its purpose should be made clear whether it be curative. This is the medical profession’s accepted professional standard and it is applied when testing whether or not a reasonable level of skill and knowledge has been used. it is not enough to inform the patient of the nature and purpose of the procedure. if she had she would not have provided consent. It must be made clear that the level of information given to a questioning patient will need to be significantly more detailed than the information given to a non-questioning patient. To make a valid decision the competent patient must be informed in the broad terms. The healthcare professional should discuss the proposed treatment with the individual’s family. without prevarication.p35-42w9 3/11/08 11:23 am Page 39 be influenced by the healthcare professional. Medical treatment in this case is provided under the principle of necessity. To establish how much information the healthcare professional must provide to be protected from accusations of negligence pertaining to consent. This is supported by the dictum of the law lords who advocate the use of Bolam in Sidaway v Board of Governors of the Bethlem Royal Hospital . in Re C (adult: refusal of medical treatment) . ‘Informed in the broad terms’ Patients must be informed before any medical procedure or treatment is commenced in what is considered the ‘broad terms’. Common law makes it clear that only procedures required to save a life can be carried out if it is not reasonable to wait for the patient to regain capacity.
The BMA (2008) makes it clear that treatment where consent is absent should be limited to save life or prevent significant deterioration. it appears it would be sufficient to provide enough information for consent to be valid. However. They should seek to obtain verbal and valid consent. The patient’s signature on the consent form is usually evidence that he or she has had discussions with a healthcare professional and has agreed to the treatment. information and voluntary – may have been absent. Certain clinical procedures carried out in 40 november 5 :: vol 23 no 9 :: 2008 . significant risks. As case law directs healthcare professionals to inform in the broad terms (Chatterton v Gerson . The DH (2001) stresses that written consent is not proof that consent was valid. These may include: Thrombolysis. Sidaway v Board of Governors of the Bethlem Royal Hospital ). Chest drain insertion. along with an explanation of why the procedure was carried out while he or she was unconscious. provides instruction on the treatment of those who lack the mental capacity to provide or refuse consent. of any procedure that was carried out and the reasons for treatment (BMA 2008). In the absence of consent The British Medical Association (BMA) (2008) has provided guidance to its members on clinical decision making. a competent patient will provide verbal consent for procedures such as cannulation and wound dressings. Exploration and closure of wounds. It also states that doctors must inform a patient. The Mental Capacity Act 2005 makes it clear that once a proper assessment has been carried out the individual can be provided with care that is judged to be in his or her best interest. The healthcare professional may be able to justify limiting the amount of information he or she provides because thrombolysis. if necessary. side effects and any other procedures that may need to be carried out. A patient may imply that he or she consents to treatment by holding out his or her arm when a nurse approaches with a sphygmomanometer. It is also important to consider the time available in the emergency setting and whether this permits lengthy discussions and allows patients sufficient time to weigh up the information given to them. The risk of death from cardiac arrest increases the longer the heart muscle is without oxygen. Montgomery (2002) suggests that a patient rolling up his or her sleeve to receive an injection is implied consent. is a procedure that will remove the patient from immediate danger and so could be justified under the doctrine of necessity. This type of drug has severe and life-threatening side effects such as CVA and potential death.p35-42w9 3/11/08 11:23 am Page 40 art & science legal issues is important that he or she is informed of the treatment received in the broad terms. Healthcare professionals should not proceed to administer an injection on implied consent. The process of obtaining written consent allows the doctor to document the proposed procedure. From clinical experience it is apparent that clinicians do not have sufficient time to allow lengthy debate. Minor surgical procedures. Once a decision is made a representative of the patient will sign the consent form to confirm that they have discussed what may or may not be in the patient’s best interest. It is good practice to secure written consent for procedures that carry significant risk or when there may be accusations of battery when minor procedures have been performed. as the three key areas – capacity. Jones et al (2005) point out that some practitioners may feel this is insufficient and that the patient has a right to receive a more detailed explanation. this implied consent may not be adequate because many drugs that are injected pose risks to the patient. for example to prevent significant deterioration or to save life. Restraint can only be used if it is deemed necessary to prevent further injury to the patient. as highlighted by Herring (2006). If the patient lacks capacity the medical team may decide on the best course of action to take once it has discussed the treatment possibilities with the family and has made a decision based on the patient’s best interests. Many of the treatments performed such as thrombolysis for myocardial infarction are time-critical. The longer the delay the less chance of the drug being successful. such as thrombolytic drugs. This care will include life-saving treatment and restraint. for example. as soon as he or she has recovered sufficiently. The use of restraint other than to provide NURSING STANDARD Providing consent Generally. The Mental Capacity Act 2005. A balance needs to be struck between informing the patient fully and providing life-saving treatment. & emergency nursing may require the patient to provide written consent. Manipulation of a limb where sedation is required.
Patients who are critically ill may be unco-operative as a result of pain and hypoxia. in the case of Chatterton v Gerson . This is important especially in emergency departments. Implications of proceeding without consent It has been demonstrated that the process of consent has a legal purpose in that it protects the patient from unwanted touching (battery) and from acts of negligence (the failure to be informed or a procedure being carried out incorrectly). and were allowed to be pursued by the Crown Prosecution Service. There have been a few successful cases where healthcare professionals have been found guilty of battery such as Hamilton v Birmingham Regional Health Authority . Criminal implications Assault in legal terms means that the victim fears the possibility of being unlawfully touched. it may have a negative effect on the provision of health care. touching does not actually have to occur. While they were under the influence of this drug he sexually assaulted and raped the female patients. concluded that: ‘Once the patient is informed in broad terms of the nature of the procedure which is intended. as in the case of R v Cobb . This was further supported in the case of Airedale NHS Trust v Bland  by Lord Mustill. when competent. It must be highlighted that the doctor or nurse will lose their immunity from prosecution if there is no lawful reason for proceeding without consent. Advanced refusal to provide consent An advanced directive gives a patient the opportunity to decide. For battery to have occurred the victim has to have been subjected to violence. is usually carried out with the patient’s consent or when it is necessary to preserve life. and gives his or her consent.’ The appropriate course of action for the claimant would be to bring a civil case against the doctor or hospital under the tort of negligence. Midazolam is routinely used to sedate patients while undergoing manipulation of fractures or dislocated limbs. and there are no other factors that would allow the nurse or doctor to proceed (for example under certain sections of the Mental Health Act 2007). If a patient refuses to consent to medical treatment (and has the capacity to refuse). Extreme intervention such as amputation may be necessary. If allegations of assault and battery could be proven to have occurred during the routine course of medical treatment. and so legal protection is provided against claims of battery. Cobb had added midazolam to an alcoholic drink which he gave to a female colleague. but also gave them midazolam while flushing the cannula. The decreased awareness resulting from midazolam may put the patient in a vulnerable position. For a conviction to be secured the actus reus (guilty act) or omission to act and the mens rea (guilty mind) or intention to cause harm (an example would be when a wound is intended to cause the victim harm) have to have been committed. for example.p35-42w9 3/11/08 11:23 am Page 41 life-saving treatment is not authorised by the Mental Capacity Act 2005. Consent also protects nurses or doctors if there are criminal or civil procedings. It is possible that the doctor or nurse could gain consent to perform a legitimate procedure and then abuse this consent while the patient is anaesthetised or under the influence of medication. Therefore. which could lead to a reduction in the number of doctors and nurses who choose to work in a particular area such as obstetrics. He was found guilty of manslaughter. For example. the november 5 :: vol 23 no 9 :: 2008 41 . Judge Bristow. If this has been carried out for medical reasons the doctor should be provided NURSING STANDARD with immunity from criminal prosecution. the healthcare professional may be liable to civil prosecution under the torts of trespass and battery. These patients often need to be restrained to keep them still while a procedure such as the induction of an anaesthetic is performed. In R v Cobb  a nurse working in an emergency department carried out routine cannulation procedures on female patients. Healthcare professionals may decide that working in a high-risk area such as emergency medicine places them at great risk of facing criminal charges. The decisions in Chatterton v Gerson  and Hills v Potter  confirm that once consent has been supplied the crime of battery no longer applies. who highlighted that ‘bodily invasion’ performed in the course of proper medical treatment stands completely ‘outside the criminal law’. In this case the defendant was found guilty of battery during a Caesarean section procedure in which the claimant was sterilised without her consent. The mens rea is difficult to apply in the context of health care and the provision of surgery. They may also face charges under criminal law of assault and battery. rape and the use of a stupefying drug and sentenced to life imprisonment. who later died. Before the acts of rape. the level of treatment he or she would want to receive when he or she becomes incompetent as a result of a medical or surgical condition. so that it affords a defence to battery. In the normal course of surgery a wounding. healthcare professionals may be liable to prosecution if they were to use section 5 of the act to restrain a violent patient and protect themselves from injury. that consent is real.
Herring J (2006) Medical Law and Ethics. it must be stressed that this power concerns decisions regarding routine healthcare needs such as dental and problems dealt with in primary care. Oxford. However. Oxford University Press. London. Montgomery J (2002) Health Care Law. BMA. informed consent and the emergency care setting. A person (donee) may give a lasting power of attorney – the right to make decisions on his or her behalf. London. Patients and the Law. British Medical Association (2008) Consent Tool Kit. The Stationery Office. It is imperative that nurses working in emergency departments have a good understanding of what treatment the law permits in an emergency situation. Jones S. In discussion with the family and in line with the patient’s wishes. unconscious. London. Chester v Afshar  4 All ER 587. Oxford. Chatterton v Gerson  1 All ER 257. Shortly before her family arrives she has a respiratory arrest and is manually ventilated. 13. Re T (an adult: medical treatment)  2 FCR 861. 3. it is decided that ventilation would be inappropriate in this situation. 19. Cave E (2007) Medicine. Churchill Livingstone. Brazier M. As stated in section 11 of the Mental Capacity Act 2005 the lasting power of attorney bestows no power to make decisions when the donee is faced with a life-threatening BOX 4 Clinical scenario 3 – advanced refusal to provide consent An 85-year-old woman has been found collapsed while out shopping. The Stationery Office. 47-53. In clinical practice it is essential healthcare professionals are made aware of any such advanced directive early on. her family presents a valid advanced directive stating refusal of artificial ventilation. Nursing and Midwifery Council (2008) The Code: Standards of Conduct. Over the past few decades case law has influenced the way in which nurses have practised. Second edition. Re MB (an adult: medical treatment)  38 BMLR 175. Department for Constitutional Affairs (2007) Mental Capacity Act 2005 Code of Practice. Knight B (1992) Legal Aspects of Medical Practice. Fourth edition. Bolam v Friern Hospital Management Committee  2 All ER 118. Performance and Ethics for Nurses and Midwives. Seventh edition. initial emergency treatment will always act to preserve life. London. Healthcare professionals should be aware that the Mental Capacity Act 2005 directly influences the treatment they provide and should not dismiss it as an issue that only concerns mental health practitioners and patients NS References Airedale NHS Trust v Bland  1 All ER 821. It is decided that she should be mechanically ventilated. London. to the emergency department. Fourth edition. Sidaway v Board of Governors of the Bethlem Royal Hospital  1 All ER 643. Penguin Books. The Mental Capacity Act 2005 has created the role of lasting power of attorney. Oxford University Press. If the wishes of a patient are unknown. Oxford. This decision may avoid the patient being subjected to treatment which he or she may have refused earlier (Box 4). 167-170. R v Cobb  WL 535677 (CA). if doctors or nurses are aware of an advanced directive early. NMC. Jones B (2005) The adult patient. She is brought. 23. Nursing Standard. Re C (adult: refusal of medical treatment)  1 All ER 819. Re W  4 All ER 627. Accident and Emergency Nursing.p35-42w9 3/11/08 11:23 am Page 42 art & science legal issues patient may decide that he or she would not want to be resuscitated in the event of a cardiac arrest. Fifth edition. Re B (adult: refusal of medical treatment)  2 All ER 449. Scholoendorff v Society of New York Hospital  105 NE 92 (NY). However. an early decision can be made that would reflect the wishes of the patient. Hamilton v Birmingham Regional Health Authority  2 BMJ 546. However. & problem. This power to make decisions would come into force when that person loses capacity to consent. Department of Health (2001) Reference Guide to Consent for Examination or Treatment. Conclusion The law in relation to the provision of treatment of the incompetent adult in the emergency setting is complex. She is identified and her family is contacted. Edinburgh. Laurie GT (2006) Law and Medical Ethics. The ability to make those decisions rests with nurses or doctors. Mason JK. This influence has often been confusing as the principles of common and case law are poorly understood by healthcare professionals. Oxford University Press. 42 november 5 :: vol 23 no 9 :: 2008 NURSING STANDARD . then with open discussions with the patient’s family and friends and other healthcare professionals. Davies K. as the speed at which critically ill patients require treatment does not necessarily allow for prolonged debate and judicial review. Hutchinson C (2005) Addressing issues related to adult patients who lack the capacity to give consent. Hills v Potter  3 All ER 716.