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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.
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