Healthcare Rights and Informed Consent

CPD
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Published: 10 August 2020

All clients have the right to receive safe, appropriate care that respects their privacy and autonomy.

An essential component of this is adequately informing clients about the care they are receiving and ensuring they provide informed consent for any treatments or procedures.

What are a Client’s Healthcare Rights?

The Australian Charter of Healthcare Rights outlines the rights of all clients receiving care and applies to every facility that provides healthcare.

Access
  • Clients can access healthcare services and treatments that meet their needs.
Safety
  • Clients receive care that is safe, high-quality and meets national standards.
  • Clients feel safe in the environment wherein they are receiving care.
Respect
  • Clients are treated as individuals, and with dignity and respect.
  • Clients’ identities, cultures, beliefs and choices are recognised and respected.
Partnership
  • Clients can ask questions and be involved in open and honest communication.
  • Clients are supported to participate in decision-making about their care, as much or as little as they wish.
  • Clients can include others in planning and decision-making if desired.
Information
  • Clients are given clear information about their condition. They are told the possible risks and benefits of tests and treatments so that they can give informed consent.
  • Clients are informed about services, waiting times and costs.
  • Clients are given assistance, if needed, to understand and use health information.
  • Clients are able to request access to their health information.
  • Clients are informed if something goes wrong during their healthcare, how it happened, how it might affect them and what is being done to make care safe.
Privacy
  • The personal privacy of clients is respected.
  • Information about clients and their health is confidential and kept securely.
Give Feedback
  • Clients are able to give feedback or complain without it affecting the way they are treated.
  • Clients’ concerns are addressed in a transparent and timely manner.
  • Clients are able to share their experiences and participate in improving the quality of care and health services.

(Adapted from ACSQHC 2019)

What is Informed Consent?

In the Australian Charter of Healthcare Rights, informed consent falls under the heading of ‘information’.

Informed consent is the ability for a client to voluntarily agree or disagree to different aspects of their care, based on information about the potential benefits, risks and alternative options (RACGP 2018).

It is a key component of consumer-directed care based on the client’s right to autonomy (QLD DoH 2017).

Clients have a legal right to be informed about their condition and any proposed healthcare interventions. Using the information given to them, clients may accept or decline these interventions. They must also be free to change their decision if they wish to do so (Better Health Channel 2014; QLD DoH 2017).

Clients can only provide informed consent if they are given sufficient, clear information and fully understand the nature of what is being proposed. Without being properly informed, clients are unable to give valid consent. The provider may then be held legally liable for breaching the client’s bodily autonomy (Better Health Channel 2014; ALRC 2014).

client filling out consent form
Informed consent is the ability for a client to voluntarily agree or disagree to different aspects of their care.

When is Informed Consent Required?

Any form of healthcare requires some type of consent. This includes:

  • Examinations;
  • Investigations;
  • Procedures;
  • Interventions; and
  • Treatments.

(QLD DoH 2014)

However, the consent required is proportionate to the risks of the specific care. In other words, simple procedures and examinations that are relatively low-risk do not require the level of consent that invasive or high-risk procedures do (QLD DoH 2014).

Types of Consent in Healthcare

  • Implied consent is expressed through actions rather than direct agreement from the client. For example, when providing a blood sample, a client may extend their arm so that the needle can be inserted. Generally, implied consent is acceptable for low-risk procedures.
  • Verbal consent is an explicit verbal statement of agreement from the client. Verbal consent can be given for low-risk procedures such as intravenous cannula insertion or dental treatment.
  • Written consent is an explicit agreement through writing or the signing of a document. Signatures should generally be accompanied by supporting documentation that outlines the communication process.

(QLD DoH 2014)

Written consent is generally only required if:

  • The proposed intervention poses a significant risk to the client;
  • The proposed intervention is controversial; or
  • The client’s capacity to consent may be put into question.

(QLD DoH 2014)

implied consent: client having blood sample taken
Implied consent is expressed through actions, such as extending your arm so that a blood sample can be taken.

Principles of Informed Consent

All of the following conditions must be met in order for a client to give valid informed consent:

  • The client has the capacity to give informed consent at the time of the decision and is not affected by drugs, alcohol or medications.
  • The client gives consent voluntarily, without coercion, manipulation or undue pressure.
  • The discussion between the client and health professional is transparent, well-balanced and two-sided.
  • The client fully understands the information provided.
  • The client has been sufficiently informed about:
    • Their diagnosis and its likely outcome;
    • What the proposed intervention involves;
    • The anticipated benefits of the proposed intervention;
    • The common side effects of the proposed intervention;
    • The alternative options to the proposed intervention and their likelihood of success;
    • The risks and complications associated with:
      • The proposed intervention;
      • The alternative options; and
      • Refusing the proposed intervention.
    • Any expected long-term physical, emotional, mental, social, sexual or other outcomes;
    • The anticipated implications of recovery; and
    • Specific details of the proposed intervention, including who will perform it and where it will occur.
  • The client has been given enough time to properly consider, clarify and contextualise the information provided to them.
  • The information given to the client and the client’s consent match the intervention that is actually provided.
  • The proposed intervention is lawful.

(QLD DoH 2017; Better Health Channel 2014)

Who Can Give Informed Consent?

All adults (over the age of 18), regardless of age, are presumed to have the capacity to give informed consent unless proven otherwise (QLD DoH 2017).

Having capacity means meeting all four of the following criteria:

  1. The client is able to understand the information provided to them.
  2. The client is able to remember all of the information necessary to make a decision.
  3. The client is able to evaluate the information given to them, consider the consequences and understand the impact of their decision. This includes understanding the consequences of delaying the decision or not making a decision.
  4. The client is able to express and rationalise their decision. This does not need to be communicated physiologically.

(VIC DoH 2014)

Note: Capacity can fluctuate. A client may have capacity one day, but may not have it the next day and vice versa. It is important to determine whether the client has capacity at the time of each decision (VIC DoH 2014).

Children Under 18

Consent for children under the age of 18 is generally given by a parent or guardian and must be in line with the child’s best interests. However, there may be situations wherein children can give their own consent (Choahan 2018).

Unlike adults, children are presumed not to have capacity unless sufficiently proven otherwise. A child with proven capacity has what is known under common law as ‘Gillick competence’, named after the English court case Gillick v West Norfolk AHA in which it was established (Health Law Central 2019).

In New South Wales and South Australia, there is legislation that recognises the capacity of children under 18 in certain situations (Health Law Central 2019).

young child and mother talking to nurse about treatment options
Children are presumed not to have capacity unless sufficiently proven otherwise.

Clients Without Capacity

What happens if an adult client is assessed as not having capacity?

In this situation, the first step is to determine whether the client has a valid advance care directive in place. An advance care directive may explicitly set out instructions for the specific intervention being proposed, which are legally binding and must be followed. If there are no specific directions, the client’s values and preferences in their advance care directive must be taken into consideration (QLD DoH 2017; Office of the Public Advocate 2018).

If the specific intervention has not been addressed in the client’s advance care directive, or there is no advance care directive, a substitute decision-maker will need to give consent on their behalf. A substitute decision-maker may have been appointed in the client’s advance care directive if one exists; otherwise, a substitute decision-maker (generally a spouse, relative or close friend) will be appointed through legislation or court (QLD DoH 2017; ALRC 2014).

As a general rule, substitute decision-makers must always act in the best interest of the client and consider their values and preferences. Clients who are assessed as not having capacity should still be involved in decisions as much as possible (QLD DoH 2017).

There are certain procedures that health professionals are able to perform without consent, depending on the jurisdiction. These are generally either minor procedures and examinations or emergency treatments. An overview of the permitted interventions for each state and territory can be found on the Queensland University of Technology website.

Extra Support

A client who otherwise has capacity may have difficulty comprehending information or communicating their consent due to a language barrier, sensory impairment or another factor. It is essential that clients are provided information in a form that they can fully understand (QLD DoH 2017).

In some situations, you may need to engage an interpreter or support service to ensure the client can communicate and understand information effectively.

Read: Advocates and Language Services

Additional Resources


References

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Ausmed’s Editorial team is committed to providing high-quality and thoroughly researched content to our readers, free of any commercial bias or conflict of interest. All articles are developed in consultation with healthcare professionals and peer reviewed where necessary, undergoing a yearly review to ensure all healthcare information is kept up to date. See Educator Profile

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