LEARNING OBJECTIVES

In this chapter, you will:

• Gain an understanding of the concept of consent and the legal framework for consent

• Gain an understanding of the legal constraints on consent

• Learn about the role of guardianship

• Develop your understanding of the nurse's role in advocating for the patient's interests

The focus of this chapter is consent. It may seem surprising that Ping Le would let a surgeon operate on her without wanting to know exactly what is going to happen to her, but some people do occasionally respond in this way – for example, when they cannot tolerate a painful condition any more. But is this acceptable from a legal point of view? What if Ping Le were seriously mentally ill and did not understand that surgery was being proposed? Who could consent for her in that case? This chapter addresses the legal requirements of consent for adults and children, and looks at the place of guardianship and advocacy in decision-making. It will also address the situation of people who are not mentally competent, who require emergency care or who need to be restrained against their will.

THE REQUIREMENTS FOR CONSENT

The fiduciary nature of the nurse–patient relationship requires that the nurse respect patients’ authority to make decisions concerning their lives. In a practical sense, that means that the nurse is required to do whatever is possible to facilitate the patient's autonomy. Recall also that, from the perspective of the ‘capabilities approach’ discussed briefly in Chapter 2, respecting the patient's autonomy means doing what you can to ensure the patient has the necessary capacities to make thoughtful, reasoned decisions that are in accord with the patient's values, commitments, aspirations and personal circumstances. This is the philosophical and moral framework that informs legal requirements of valid consent to treatment.