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

1. Ensure a valid trigger is present• Event that puts the person at risk

2. Engage those being assessed 3. Information gathering

• From person being assessed

4. Education• Provide opportunity to learn information• Ignorance does not equal incapacity

5. Capacity assessment• Look for evidence of incapacity

6. 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 vs Rossiter (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

Legal Aspects of Organ and Tissue Donation and Use

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

Other Important Concepts

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