Informed consent on treatment
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Informed consent on treatment

What is in­formed consent? In medical law, in­-formed consent is the consent that a patient arrives at after having been provided with adequate information by the medical practitioner; and, after having evaluated all the possible options available, such patient comes to an informed decision as to whether he/she should consent or refuse a specific treatment. Competent adults have the faculty to refuse a treatment – even if such treatment is beneficial to the patient. In England, a competent patient can refuse life-saving treatment even if the reasons for such a refusal are bizarre! So long as the patient is competent, for instance after being assessed by a psychiatrist, then such patient is free to refuse treatment – even if such treatment is potentially life-saving. Why is this so? This is because a patient is deemed to enjoy autonomy – that is the freedom to take any decision with regard to his/her health, obviously as long as that patient is deemed competent.

Consent is built on capacity, understanding and voluntariness. If all three are present then such patient can come to an informed decision. What is capacity? Capacity is legal competency – all adults are deemed to be competent, so the onus to prove otherwise would be on whoever claims that an adult is incompetent. A patient can have sufficient understanding if that patient is provided with enough information – which information needs to be provided by the medical practitioner.

Voluntariness is an important aspect – this means that the patient is not coerced or pressured in any way to submit to a treatment which that patient does not want to submit to. For example, a medical practitioner cannot force a patient to submit to a treatment – the practitioner can try and persuade the patient, but ultimately the decision to accept or refuse a specific treatment lies in the hands of the patient and if the competent patient refuses such treatment, then the medical practitioner has to respect such decision. For example in Re C, ([1993] 1 FLR 574, 35) a man with gangrene did not have his leg amputated due to bizarre notions, even though it was hazardous for his health.

This is a relatively new concept because in the past it was deemed that the doctor knew best and what the doctor said went – in effect there was no patient autonomy. However, nowadays, the patient is the motor of his/her own life and patient autonomy is supreme. Patient autonomy can only be upheld if the medical practitioner provides the patient with adequate information so that the patient can reach an informed decision. The medical practitioner is not bound to provide the patient with all the information but only with adequate information that a reasonable patient, with such information, would be in a position to come to an informed decision.

However, informed consent does not only imply that the medical practitioner has a duty to inform, but it also implies that the patient has a duty too – a duty to ask questions! The patient should and is legally required to ask questions to elicit more information from the medical practitioner. And once questions have been asked, the medical practitioner cannot deny answering them – the practitioner is legally bound to answer all questions truthfully. This is patient autonomy at its best because if the patient is to take a proper decision s/he needs to be well informed and provided with enough knowledge to come to a proper decision.

However, this situation applies only to adult patients. Minor patients are treated differently. All adult patients are deemed to be competent and if they are incompetent it must be proved that they are so. Minor patients, on the other hand, are deemed to be incompetent, whether they have enough mental faculties or not. In England minors above 16 years are deemed to be competent to consent whereas minors below 16 are deemed incompetent, and if they desire to give or withhold their consent it must first be proved that they are Gillick competent – that is, they have sufficient understanding and maturity to be able to consent.

In Malta, Gillick competency is fairly nonexistent. The fact that mature minors and adults are not treated the same is an anomaly, because while not all adult patients are competent, not all minors are incompetent. Therefore, why should competent minors be denied the faculty to consent simply because they are deemed to be legally incompetent? Reality poses a different aspect which shows that minors are not all incompetent and there are minors who in fact possess sufficient understanding and maturity to give informed consent if they are provided with adequate information.

If minors in Malta can hold a bank account in their own name once they are 16 years old, or carry out acts of trade, or become eligible to work, or even get married, then why are they still deemed to be legally incompetent to make an informed decision about medical treatments?

annmarie.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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