Forensic medicine – level 2

Informed decision and consent

Mental capacity
 To make any appropriate and best decision, the person should have mental capacity.

 The ability to use and understand information to:

1) Make a decision.
2) Communicate any decision made.
Def  Thus, a person with normal healthy mind and brain function who can
generally, understands what decision he/she needs to make and its
consequences is consisted "capacious" or "competent

 However, in some cases, the mental capacity is doubtful

 Who should assess a doubtful capacity?

 Where there are doubts about capacity for giving a decision is doubtful, an expert
advice from a psychiatrist or psychologist with particular experience in assessing
capacity should be sought.

 When psychiatrist or psychologist assesses someone's capacity, he should examine:

1) Does the person have an impairment of the mind or brain? (It doesn't matter
whether this impairment is temporary or permanent at the time of decision.)

2) Does the person have a general understanding of what decision they need to
make and why they need to make it?

3) Does the person have a general understanding of the likely consequences of

making, or not making, this decision?

4) Is the person able to understand, retain, use and weigh up the information
relevant to this decision?

5) Can the person communicate their decision (by talking, using sign language or
any other means)?

By: Hossam Selim

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 Forensic medicine – level 2

Lack of capacity

A person lacks capacity if their mind is impaired or disturbed making

Def
them unable to give a decision at that time.

1) Mental health conditions e.g., schizophrenia or bipolar disorder &

dementia.

2) Severe learning disabilities.

Example 3) Brain damage - for example, from a stroke or other brain injury.

4) Physical or mental conditions that cause confusion, drowsiness or a

loss of consciousness.
5) Intoxication caused by drugs or alcohol misuse

 Someone with such impairment is unable to make a decision if he/she cannot:

1) Understand information about the decision.
1) Remember that information.
2) Use that information to make a decision.
3) Communicate their decision by talking, using sign language or any other means.

 In case of lack of capacity:

 An adult partner
 legal custodian and/ or an adult family member who is responsible for the
incompetent patient can give or refuse consent.

By: Hossam Selim

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 Forensic medicine – level 2

Consent in medical health

Introduction:
 Autonomy Is the patient's right to decide whether to agree (consent) or to refuses
(refusal) of certain clinical examination or treatment.

 In the medical field, having mental capacity enable the patient to say "YES" to
examination, investigation or treatment provided by the doctor "i.e. consent" or to
say "NO" to such procedures "refusal".

 To examine, treat or operate upon a patient without consent is assault (battery) in

law, even if it is beneficial and done in good faith.

 If a doctor fails to give the required information to the patient before taking
consent to a particular operation/treatment, he may be charged for negligence.

 It means voluntary agreement, compliance or permission.

 There are 3 key elements for taking consent:
Def o Competence (capacity)
o Voluntariness
o Disclosure (informed)

Consenting Ages for treatment:

 The age of consent for medical examination, treatment, any diagnostic or invasive
procedures is legally accepted as >21 years (age of full civil rights in Egyptian law).

 For a child, or a patient of unsound mind, his/her guardian or a local authority

designated to care for the child can give consent.

By: Hossam Selim

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 Forensic medicine – level 2

Forms:
o Consent is of two types:

1. Implied 2. Expressed
 It is specifically stated by the patient in
distinct and explicit language. It can be:

 When the patient presents himself 1) Oral/verbal consent:

at the doctor's clinic or
o Obtained for relatively minor
outpatient.
examinations or therapeutic procedures,
 Inspection, palpation, percussion in presence of a nurse e.g blood collection
and auscultation. for lab tests, ECG

 Further examinations, like rectal, 2) Written consent:

vaginal and withdrawal of blood
need expressed permission. o All major diagnostic procedures as
endoscopy, BM aspiration, etc.

o General anesthesia
o Operations.

Informed Valid & Refusal consent

1. Informed valid Consent

 It implies the understanding of the patient of:
1) Condition or nature of illness.
2) Purpose and nature of procedure or treatment proposed.
3) Risks and benefits of treatment or procedure.
4) Prospect of success or failure.
5) Risks and benefits of alternative treatments) or procedure(s).
6) Prognosis in the absence of intervention.
7) Acceptance or refusal (informed refusal) of a procedure or intervention.

By: Hossam Selim

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 Forensic medicine – level 2

2. Informed Refusal

 The patient should be informed that:

o He has right to refuse to submit to examination and that the result may go against
him.
o IF he refuses, he cannot be examined.

 The concept of informed refusal states that:

o The doctor must inform the patient about the risks of refusing a particular
operation, test, medication, or other medical intervention.

 To be legally valid, such informed refusal must be reduced to writing with signatures
of patient, doctor and witness.

General guidelines
Consent should be:
 Free, voluntary, clear, intelligent, informed, direct and personal.
 There should be no undue influence, fraud, misrepresentation of facts, compulsion,
coercion or other consequences.

The knowledge regarding the intervention should be:

 Imparted in an understandable language and format so that decision can be made

by the patient.
 A reasonable information which a doctor deems fit considering best practices
should be presented.

It should be in a proper form and suitably drafted for the Circumstances gall.

The more specific the consent, the less likely it will be construed against the doctor or
hospital in court.

The written consent should be witnessed by another person, present at the signing to
prevent any allegation that the consent was obtained under pressure.

By: Hossam Selim

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 Forensic medicine – level 2

Special situations

 Where there is no nearest relative or where the physician or institution

has been unable to find the nearest relative, a physician may provide
A No one to necessary treatment if:
consent o He believes that the proposed treatment is essential; and
o Another treatment provider agrees in writing that the proposed
treatment is essential.

 In criminal cases, the victim cannot be examined without his/her

consent.
 The court cannot force a person to be medically examined.

Can be examined by a doctor by using reasonable force.

In criminal • If requested by a police officer
An accused
cases • If examination may provide evidence to the commission
of the offence.

An arrested person may be examined by a doctor at his

An arrested
request to detect evidence in his favor.

 Whenever a female is to be examined, the examination is better made

by, or under the supervision of a female medical practitioner.

 Such an examination by a male doctor must be carried out in the

presence of a female nurse.

 In rape cases, the victim should not be examined without her written
consent.
Female  In medico-legal cases of pregnancy, delivery and abortion, the woman
should not be examined without her consent.

 For contraceptive sterilization and artificial insemination, consent of

both husband and wife should be obtained.

 In prenatal diagnostic procedures, informed written consent of

pregnant woman is obtained and a copy of the consent is given to the
woman.

By: Hossam Selim

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 Forensic medicine – level 2

 The law provides the consent in any procedure made compulsory by

State
state, e.g. mass immunization

1) For donation of organ after death, the will of the deceased is enough.

Post- 2) Pathological autopsy should not be carried out without a consent of

mortem next of kin.

3) Medico-legal autopsy does not require any consent from the relatives.

Invalidity & Exceptions of consent

Consent is invalid if:
1. It is not an informed consent.
2. Given for committing a crime or an illegal act, such as criminal abortion.
3. Obtained by misrepresentation or fraud.
4. Given by one who had no legal capacity to give it, e.g.
o a minor or
o an insane person or
o under the influence of drugs or intoxication.

By: Hossam Selim

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 Forensic medicine – level 2

Therapeutic privilege

 Definition: the 'therapeutic privilege' enables the doctor to withhold from patient the
information (as to risk)

 If the disclosure would pose serious psychological threat to the patient e.g.,
malignancy or unavoidable total results)

 However, he should disclose full information to a competent relative of the patient.

Exceptions to informed consent:

1) Emergencies (e.g. danger to life or limb)

2) Medico-legal post-mortem examination

3) Examination of an arrested accused

4) Treatment of patient suffering from "notifiable disease" for greater community

interest

5) Psychiatric examination or treatment by court order

6) Prisoners (new entrants)

By: Hossam Selim

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 Forensic medicine – level 2

Assent in children

 Children under the age of 18 & an adolescent below the age of 21

years can agree to their own treatment if:
Age • They're believed to have enough intelligence, competence and
understanding to fully appreciate what's involved in their
treatment.

 Means a child's agreement to medical interventions and research.

 Doctors should:
• Carefully listen to the opinion and wishes of children who are not
able to give full consent
• Strive to obtain their assent.
Informed
 Children have the right to receive information given in a way that they
assent
can understand and give their assent or dissent.

 This assent process must promote and protect:

1) The dignity
2) Privacy
3) Confidentiality of the child and his or her family.

Special situations
 Where treatment is necessary to save a life or prevent serious harm:
 The doctor has the duty to act in the best interest of the child.
 However, parents may also refuse to consent and in this case national laws and
legal mechanisms for resolving disputes may be used.
 The courts can make a decision if treatment is thought to be in the best interests of
the child.
 In an emergency:
 Where treatment is vital and waiting for parental consent would place the child at
risk, treatment can proceed without consent.

By: Hossam Selim

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 Forensic medicine – level 2

MCQs
1. Which of the following is NOT a character of consent:
a) Informed
b) free
c) simple language
d) voluntary e compulsive

2. The age of consent in EGYPT corresponds to the age of:

a Marriage
b) full civil rights
c) consent of rape
d) having driving license

3. One of the following does not necessities consent:

a Examination of raped female
b) artificial insemination c severely shocked patient
d) gall bladder surgery
e) general anesthesia

4. A young person has a malignancy, and the doctor didn't tell him about that but told
his older brother, this is considered:
a) Assault against the doctor
b) therapeutic privilege
c) negligence from the doctor
d) mispresentation & fraud to patient
e) harmful act against the patient

By: Hossam Selim

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 Forensic medicine – level 2

5. consent is invalid in all except:

a) person is above 21 but below 23 years.
b) person is drunken & under alcoholic effects c person is requesting criminal abortion
d) person is mentally deficient or insane
e) person is compulsed by relatives to consent

6. The patient's right to decide whether to agree or not a treatment called:

a) consent
b) professionalism
c) Ethical oriented
d) Autonomy
e) informed consent

7. One of the following situations need no consent:

a) mass immunizations
b) pathological autopsy
c) medico-legal autopsy
d) Altruism e Female examination

By: Hossam Selim

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