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Q & A - Medico legal 2
(Apr '04 onwards)
Index
ML35 - Cervical smear non responders
ML34 - Legal capacity to consent
ML33 - Jury service
ML32 - Adoption and parental responsibility
ML31 - Confidentiality and young people
Q ML35 - Cervical smear non responders - We have just received a form from the PPSA informing us that there is a new system
relating to women who do not respond to three invitations to attend for a cervical smear. We have been told that we must now ask these women to sign a legal disclaimer form in order that they may be 'removed'
from the NHS cervical screening programme or have their invitation postponed. I don't feel comfortable asking women to sign a legal disclaimer just because they choose to ignore an invitation to attend.
Am I obliged to do so? (02/12/04)
Answer - We have spoken to the PPSA about the new scheme and they have already had a number of
enquiries about it also. They confirm that there is no need to fill in a disclaimer for every patient who chooses not to attend for a routine cervical smear. These women will be invited again in 5
years time, when they will have the opportunity to reconsider their decision.
The disclaimer is only intended for those women who have made a firm decision that they do not wish to have a cervical smear at any time in the future, or wish to
postpone the invitation for a finite period and do not wish to be bothered with further invitations to attend in the interim period. Patients must be fully informed of the possible consequences of their
decision in order to give valid explicit consent for the PPSA to take their requested action with regard to future recall.
If a patient does not express a wish for such definitive action then it would seem wisest for them to be offered further routine appointments in the usual way
through the National scheme and as set out in the regulations.
Schedule 2 of the Regulations
relates to cervical screening and stipulates that a contractor whose contract includes the provision of cervical screening services should provide any
necessary information and advice to assist women identified for a cervical screening test to make an informed decision about participation.
The
Supporting Documentation - Quality and Outcomes Framework section 5 - CS Indicator 4 sets out very clearly that "Women who have opted for
exclusion from the cervical cytology recall register must be offered the opportunity to change their decision at least every 5 years." This is good practice since the consent is only legally valid
at the time at which it is given and may subsequently be withdrawn at any time.
The practice guidance sets out that "Women who wish to opt out should not be permanently excluded from the register. Although they need not be sent a reminder
letter on a regular basis, it is important that periodically women who have opted out of cytology are given the opportunity to reconsider their decision. There should be a system in place to offer cervical cytology
at least every 5 years to those women who have elected to be excluded from recall for cervical cytology."
In order for the GP to conform to the quality indicators women cannot therefore permanently opt out of a regular routine recall. The easiest policy would be
for the patient to receive a regular reminder through the NHS screening programme operated by the PPSA. It is also the safest in legal and medical terms.
If the woman elects to be removed from the national programme, on the basis of full information that she has been able to understand, a signed consent to this
removal is a sensible precaution. A copy should be retained by the GP and the PPSA.
The quality indicators state that there should be written evidence as to how these women will be identified and recalled for a smear every 5 years. It is
very important to identify where the responsibility for this recall lies.
If a woman wishes to be reinstated in the national screening programme the PPSA will have to be informed in writing of the decision.
The documentation is very confusing, but it appears to be very difficult under the new contract for any woman to make an absolute and final decision regarding
refusal of future cervical smear examinations!
See also Q&A
cervical smear non-responders in relation to follow up of abnormal smears.
CED
Q ML34 - Legal capacity to consent - I am concerned that some
patients, especially the elderly and those with mental health problems, may not always have capacity to provide legally valid consent to treatment. Do I have cause for concern? (18/10/04)
Answer - There may well be occasions when this could be of importance,
but there is little published information on its frequency at the primary care/outpatient level.
The Lancet (2004; 364: 1421-27) recently published a paper on Prevalence
of mental incapacity in medical inpatients and associated risk factors: cross-sectional study.
The authors estimated that at least 40% of medical inpatients did not have mental capacity, which is a surprisingly high proportion. They also identified the fact that clinicians tended not to
recognise that lack of capacity!
A survey of adult patients at a GP's surgery would probably also reveal a high number of patients who lack the capacity to provide legally valid
consent. This may occur in patients with mental health problems or learning difficulties, those who may have been drinking or taking illegal
drugs, those whose first language is not English and those elderly, and not so elderly, patients who are easily confused in a medical setting.
Mental capacity is situation-specific and a patient who is perfectly capable of making many complex decisions may be unable to consent to treatment
because they are unable to understand or appraise all of the information that the GP would be obliged to provide in order for the patient to provide legally valid consent to treatment.
The NHS increasingly expects patients to be more actively involved in treatment decisions and to be offered an increasing number of choices in
relation to that treatment. The legal validity of a patient's consent to treatment is likely to become a more serious problem for this reason in the future.
Doctors must always be aware of their legal obligation to act in the patient's best interests. It may on rare occasions be legally permissible to
provide treatment without consent if it is essential as a matter of life and death or to prevent serious mental or physical harm to the patient in a situation where it is not possible to obtain consent.
However, in the case of Ms B, English High Court judge Dame Elizabeth Butler-Sloss warned of the "serious danger" of "benevolent paternalism
which does not embrace recognition of . . . personal autonomy". If there is any doubt about the validity of consent in a non-emergency situation,
specific legal advice must be obtained before treatment is given.
CED
Q ML33 - Jury service - I have been called for jury service in
November. I thought as a GP I was not eligible for jury duty. Has the situation changed? I will in fact be on holiday shortly before the proposed date and any further absence from the practice at that time
would cause a major problem. What can I do? (05/10/04)
Answer - Under the Juries Act 1974, members of the medical and similar
professions were 'excusable as of right', ie they had the right to refuse to do jury service, if they so wished, by virtue of their profession. People
over 65 years of age, Members of Parliament, members of the Armed Forces and members of certain religious bodies were also included in this category.
Doctors were never 'ineligible' in the same way as members of the judiciary, the clergy and mentally disordered persons.
The eligibility and appointment of jurors from key occupations in society, including barristers, solicitors, GPs and hospital consultants was established in Schedule 33 of the Criminal Justice Act 2003
New
Guidance for summoning officers when considering deferral and excusal applications was issued on April 5th 2004. Since then all
registered electors in the UK have been eligible for Jury service and doctors are no longer considered excusable as of right!
There was considerable opposition during the consultation period to the fact that doctors could be taken away from essential and highly pressured
patient services for this purpose, but this was disregarded.
The Guidance for Summoning Officers, however, says that deferral may be considered in the first instance if there is a good reason for this, and
excusal should only be considered if it would be unreasonable for the person to serve at any time during the next 12 months.
Your best bet would be to plead special reasons why, as a GP in your particular circumstances, it would be impossible to take time out from the
surgery in November or for the foreseeable future without a detrimental effect on your patients.
You could cite particular difficulties with the date proposed because of your planned holiday. You could also plead that you would have difficulty
taking time out for the foreseeable future because of difficulties in getting locum cover, a particularly high patient load per doctor, a very heavy workload, especially throughout the winter months, or perhaps
another doctor being on sick leave or maternity leave, or difficulties replacing a recently retired doctor, or special problems with implementation of the new contract. The more convincing the reasons the
more likely you are to be excused! Good luck!
Further information;
A Department for Constitutional Affairs Consultation Paper - Jury
Summoning Guidance - December 2003 ;
Responses to a consultation paper produced by the Department for Constitutional Affairs
Guidance for medical practitioners summoned for jury service;
November 2005
See also
Q&A PR514 - Jury Service
CED
Q ML32 - Adoption and parental responsibility - A young child was
recently brought to the surgery by her step father. Does he have the authority to make clinical decisions for her? (24/06/04)
Answer - Step parents do not have automatic parental responsibility over
step children, even if they are living with them. Major decisions should still be made by those parents who have legal parental responsibility. However, step parents with whom step children are living do have a
responsibility to safeguard the welfare of the children in their care, and may have a responsibility for the maintenance of a step child where a marriage means the child is a 'child of the family'.
For most day to day decisions, where the proposed treatment is clearly in the child's best interests, the step parent will generally be able to consent
on behalf of any "child of the family". The step parent may also provide consent on the basis of delegated authority from a parent with legal
parental responsibility. If a decision regarding treatment is in any way contentious, however, it should only be made by or on behalf of a parent
with legal parental responsibility. For example, a surgical procedure is likely to require the consent of a parent with parental responsibility.
If the birth parents were married at the time of the birth, then both natural parents will have legal parental responsibility, unless the courts
have limited this in any way. If the birth parents were unmarried, it is likely that only the natural mother will have parental responsibility, unless
the father actively acquired legal parental responsibility. However, since the beginning of 2004 an unmarried father who is named on the birth certificate will automatically have parental responsibility.
Step parents may acquire parental responsibility by:
- being appointed guardian to care for the child if the natural parent dies
- obtaining a formal Residence Order from a Court stating that the child lives with them
- by adopting the child
- since December 2003 a step-parent may also acquire parental responsibility on marrying the child's natural parent, provided both
biological parents give consent. In this situation the natural father will normally retain parental responsibility.
A child or young person may of course be able to understand sufficient information to be competent to provide valid consent for their own treatment.
CED
Q ML31 - Confidentiality and young people - Can you tell me if there is any guidance on from what age we can refuse to give out
results/medical information to a parent? I had something in my mind that it was about 16? (20/05/04)
Answer - There is no particular age set for this. It all hinges around the
concept of 'Gillick competence' and the question as to whether a young person is capable of providing valid legal consent. This means that he or she is has been given all of the relevant information and is mentally
competent to understand all of that information and to make a reasoned judgement based on it. Provided the young person gives this consent willingly, he or she is owed a duty of confidence in common law.
It is always advisable to suggest that the young person seeks the support and advice of parents and it is advisable to try and encourage parental
involvement. However, if a competent young person refuses to give explicit consent to share any sensitive personal data with the parents, you are obliged to respect their wish for confidentiality. If you, or anyone
else, tried to coerce them into permitting disclosure of data to the parents, then that consent would probably not be legally valid.
A recent case involving a young girl who had an abortion without her parents consent or knowledge was probably determined on this basis. In
the final analysis only a court of law can determine any particular case.
Many people believe it to be wrong to treat a young person without the parent's knowledge or consent, on the assumption that parents always act
in the child's best interests and are there to support their children and guide their choices at all times. Sadly there may be circumstances in which a parent would not be supportive of a young person's reasonable
choices and could not be relied upon to act in the young person's best interests.
BMA ethical advice on Confidentiality and people under 16 suggests that
it is better for a young person to feel able to seek medical advice and treatment independently from a responsible professional, rather than to
be denied access to treatment because of a fear of breach of confidence.
We may not always agree with a young person's choices, however, as doctors we have a legal and professional duty to act in the patient's best
interests at all times. Generally we would be expected to respect our patient's decisions, unless this involved acting illegally or in such a way as
we believed would cause harm to the patient. The Annual Representative Meetings of the BMA in 1993 passed a resolution that no doctor should be obliged by patients, relatives or hospital administrative staff to act
contrary to his or her conscience and this guidance still stands.
If medical treatment is in any way controversial, treating a young person without parental involvement and consent, except on the basis of very
specific legal advice and the prior agreement of your medical defence organisation, would be foolish and very likely to lead to a legal challenge.
A patient over the age of 18 may wish to draw up a legally binding advance directive. There may be rare and exceptional circumstances
when a younger person may wish to do so. A doctor should always seek specific legal advice before acting on this and the matter of legal validity
and parental information and consent would be of critical importance.
Footnote:
Sex with a girl under the age of 13 is illegal, carries a maximum life
sentence, therefore decisions regarding abortion or contraception for a girl under the age of 13 is particularly problematic. You should, therefore, always seek legal advice if you have any doubt about
management of these very difficult cases.
CED
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