Why has this guideline been produced?

• Previous AAGBI guidelines released in 2006
• GMC Guidelines on consent issued in 2008
• Department of Health Guidance issued in 2009
• BMA / Law Society Guidance on assessment of mental capacity issued in 2015
• Multiple case law judgements

“Consent … can only be valid if adequate information is supplied and the patient has the capacity to understand it and make a balanced decision, free from coercion”

Key Elements

• Information
• Voluntariness
• Capacity
• Impact of the Mental Capacity Act (2005)
• 12 Recommendations

Information

• Information about anaesthesia and its associated risks should be provided to patients as early as possible.
• For elective patients, before admission, preferably at pre-assessment or at time of booking
• Anaesthetists should tell the patient:
  • what procedures are intended, and why
  • what the significant, foreseeable risks of these procedures are, and their consequences
  • what the alternatives are, including having no treatment
• The anaesthetist on the day must be satisfied that patients have been given sufficient time to come to a considered view after they have been provided with relevant information about their treatment, and have had the opportunity for adequate discussion, even if admitted on the same day as surgery
• Patients should be informed that they will meet the anaesthetist before their operation, so that further queries and discussions can take place before finally consenting to anaesthesia.

Recommendation 1

• Information about anaesthesia and its associated risks should be provided to patients as early as possible.
• Preferably in the form of an evidence based online resource or leaflet that the patient can keep for future reference.
• Those undergoing elective surgery should be provided with information before admission, preferably at pre-assessment or at the time of booking, but the duty remains on the anaesthetist to ensure that the information is understood.

Recommendation 2

• Immediately before induction of anaesthesia (e.g. in the anaesthetic room) is not an acceptable time to provide elective patients with new information other than in exceptional circumstances

Recommendation 3

• The amount and the nature of information that should be provided to the patient should be determined by the question: ‘What would this particular patient regard as relevant when coming to a decision about which of the available options to accept?’

Recommendation 4

• At the end of an explanation about a procedure, patients should be asked whether they have any questions; any such questions should be addressed fully and details recorded.

Recommendation 5

• Anaesthetists should record details of the elements of a discussion in the patient record, noting the risks, benefits and alternatives (including no treatment) that were explained.

Recommendation 6

• A separate consent form, signed by the patient, is not required for anaesthetic procedures that are done to facilitate another treatment

Recommendation 7

• Consent is an ongoing process, not a single event, and may require repeated discussion and/or confirmation, with documentation at every stage

Voluntariness

• Good practice to indicate if one option is preferred over another, but be careful of allowing your enthusiasm to override a patient’s autonomy
• Friends or relatives may have a coercive influence, especially:
  • Child with capacity accompanied by parent
  • Obstetrics
  • “Certain cultures”
•  Speak to the patient away from the coercive influence
• Needs careful handling
• Especially if English is not the first language

“Translators or readers must be available for those patients unable to read the written information provided. If the patient does not speak English then consent must take place with the use of an interpreter, and must not rely on family members or friends to translate, ensuring the accuracy of the information provided and reducing any coercive influence”

Recommendation 8

• For a course of treatment (e.g. for chronic pain), consent to continue should be confirmed and documented before each individual component, and any changes to risks, benefits or alternatives discussed fully

Recommendation 9

• If patients insist they do not want to know about the risks of a procedure (including anaesthe sia), the consequences of this should be explained; this discussion should be recorded in writing and the patient given the opportunity to change his/her mind. Patients should understand that there may be risks but should not have a detailed explanation forced upon them if unwilling.

Capacity

Recommendation 10

The Mental Capacity Act 2005 (MCA) confirms that adults should be presumed to have capacity to consent to medical treatment. If there are reasonable grounds for concluding otherwise, these must be documented. The MCA places a duty upon all those concerned with care to make efforts to reverse or minimise temporary incapacity to enable patients to make their own decisions and, where it is not possible to do so, to treat patients lacking capacity in their best interests.

Capacity to consent

• Over 16 years old
• Able to understand, retain, use and weigh the relevant information and communicate their decision
• It is for the person treating the patient to decide if the patient has capacity
• Cannot make assumptions based on age or behaviour
• Cannot treat a patient as lacking capacity unless all practical steps to help them regain capacity have been tried unsuccessfully
• Capacity is issue specific

Patients detained under Mental Health Act (MHA)

• Consent is not required for any medical treatment of the patient’s mental disorder (Part 4 MHA)
• Consent or a second opinion is required for ECT
• Advance decisions, health and welfare attorney, court appointed deputies can refuse ECT
• Emergency ECT: treatment is likely to alleviate or prevent deterioration in the patient’s condition
  This extends to use of GA for ECT

Recommendation 10 (more)

Adults may make an advance decision to refuse treatment or appoint a proxy to decide upon their behalf using a lasting power of attorney (LPA). A valid and applicable advance decision or a decision of a validly appointed health and welfare LPA is legally binding, as is the decision of a court-appointed deputy with the appropriate powers.

Qualified Consent

• Withhold consent for certain aspects of treatment
• Should be recorded in hospital notes
• Informed of likely consequences and reasons why the treatment was proposed
• List on consent form:
  • Precise nature of the restriction
  • Explanation of risks
• An anaesthetist can refuse to treat a patient provided no additional harm is likely to result from that refusal, but should make reasonable attempts to find a different anaesthetist

Advance Decisions

• An advance decision to refuse routine treatment doesn’t have to be in writing
• An advance decision to refuse life sustaining treatment must be in writing, must be witnessed and must make it clear that that it is to apply even if life is at risk
• Should be respected unless there is good evidence the patient did not have capacity to make the decision or has changed their mind
• Cannot authorise doctors to act outside the law or compel a doctor to carry out a specific form of treatment

DNAR

• DNAR decisions are not advance decisions
• Decisions regarding resuscitation must be based on discussion with the patient (or those close to the patient if the patient is unable)

Lasting Power of Attorney

• Legal document that allows a patient to appoint another person(s) to make decisions on their behalf in the case of incapacity
• 2 types – health/welfare and property/financial
• Must be registered  – can take weeks
• Only health/welfare LPA can make healthcare decisions
• Cannot refuse life-sustaining treatment unless specifically authorised in the document granting power of attorney
• Court-appointed deputies may have powers to make healthcare decisions, but not to refuse life-sustaining treatment

Determining “Best Interests”

• Consider:
  • Welfare in the widest sense, not just medical but social and psychological
  • Nature of the medical treatment
  • Prospects of success
  • Likely outcome of treatment
  • What the patient’s attitude to the treatment is or is likely to be
• May or may not appear wise to healthcare professional
• Family members must be consulted, but this should not compromise emergency care
• If not available and facing “serious medical treatment” should seek an IMCA

Recommendation 11

• Anaesthetists should be aware of the different frameworks that apply in relation to consent (and who can consent on behalf of the patient) with respect to patients aged 16 and 17 and those under 16.

16 & 17 year olds – often referred to as “young people” 😉

• Covered by MCA
• Presumed to have capacity to consent
• If they have consented, not necessary to obtain consent from parent or guardian
• Consent can also be given by those with parental responsibility
• Court can overrule the refusal of treatment of a capable young person if they are likely to suffer irreversible harm as a result of their refusal

Children (<16 years old)

• Not presumed to have capacity to consent
• Gillick Competence:
  Has sufficient intelligence and understanding to appreciate fully what is proposed
• A capable child should understand:
  • the treatment
  • its effects,
  • the consequence of non-treatment
• If capacity fluctuates, the child should be considered as lacking capacity
• Capable children should be encouraged to inform their parents about treatment, but the doctor must still respect their right to confidentiality and a refusal to permit disclosure to the parents.

Children who lack capacity

• Person with parental responsibility may consent for treatment in the child’s best interest
• They must have capacity to make the decision. Either parent may consent
• Other family members may not give consent on behalf of the parents
• Refusal of consent:
  • Disagreement between parents – court may rule to limit one parent’s right to withhold consent
  • Both parents refuse: court may overrule
  • Competent child refuses: parents may consent, but consider whether the authority of the court is needed

Children – life threatening situations

• Obtain parental authorisation if possible
• Apply to court if necessary
• Do not delay treatment essential to safeguard the child’s life or health
• Usually possible to find a judge within an hour

Recommendation 12

When planning to allow trainees or others to use an opportunity presented by a clinical encounter for training in practical procedures, the anaesthetist should make every effort to minimise risk and maximise benefits, and should consider alternative ways of achieving the same end. Specific consent for such procedures may or may not be required depending on the circumstances.

Suggested approach to on the job learning

• The risks and benefits of each procedure and its components, both to the patient concerned and to society in general, must be considered.
• The harms should be minimised as much as possible, for example by close supervision, prior practice on manikins, etc.
• The benefits should be maximised as much as possible, for example by close supervision, and targeting skills to practitioners most likely to use them in the future.
• Alternatives should be considered, for example other ways of learning/maintaining skills, other techniques.

Teaching non-medical staff, students etc

• Less skilled & not medically qualified
• DoH guidance: consent not needed for procedures done by students if such procedures are part of patient’s normal care.
• AAGBI: this depends on the risks involved
• No moving room to room to “do intubations”