Chapter 6

INFORMED CONSENT:
RIGHTS AND OBLIGATIONS

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 1

 Introduction (1 of 2)
 Legally and ethically persons
have the right to chose the
direction of their health care.
This right is
 grounded on the principle
of autonomy
 embedded in legislation
that has advanced over
time
 supported by standards
and processes in place
to protect persons from
exploitation and harm.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 2

 Introduction (2 of 2)
 Health professionals have
a duty to ensure this right,
is respected through a
valid informed consent
 These rights and
obligations are
embedded in
professional codes of
ethics.
 Nurses play a special
role in navigating the
moral journey to
consent.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 3

 Varying Dimensions of Consent

The authorization of consent may be expressed

through
• Action, inferred from the patient’s conduct (e.g., holding out
his or her arm for an injection, filling a new prescription)
• A clear statement of assent (e.g., agreeing to a urinary
catheterization)
• Formally in writing.

Approach varies according to the nature and

complexity of the decision
• Low to high risk of the intervention
• High to low certainty of success.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 4

 A Valid Consent: Autonomous
Authorization (1 of 3)

The strongest manifestation of human rights, autonomy and

freedom in health care, the process of consent allows persons to
• exercise their rights to determine what happens to their bodies
• authorize interventions, including nursing care
• control their care and make decisions about what is most important for them,
what they value and believe

An informed consent ensures

• Persons receive the information to make the right choice

A valid informed consent has additional distinct processes.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 5

A Valid Consent: Autonomous
Authorization (2 of 3)
For a consent to be valid the…

person must be legally capable of making the decision

including the risks and benefits of treatment, the

information required to make risks of foregoing treatment
that decision must be shared specific to the proposed intervention including
who will perform the treatment or procedure

team must respond to questions and provide clarification

as required

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 6

 A Valid Consent:
Autonomous
Authorization 3 of 3

person must
For a consent to be demonstrate that this
valid the… information is
understood

person must be
process must be free
assured that the
of deceit and
decision is totally
coercion
voluntary

person has the right

consent may be to refuse consent,
withdrawn at any even if the proposed
time. intervention is in their
best interests.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 7

 The Legal Framework for
Informed Consent
 Lack of Consent
 Battery, an intentional tort, is
the touching of another
person without consent
 In health care settings, any
treatment, surgery, nursing
action, diagnostic test, or
intervention that occurs
without prior consent is
forbidden unless the patient
or proxy is unable to consent
and delay could result in
serious bodily harm or death

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 8

 Navigating the Moral Journey to
Consent (1 of 3)
 Nurses guide the informed
consent process by
 confirming that the
person is capable of
giving consent
 ensuring the environment
is conducive to the
conversation
 ensuring the right
amount of time is given
to the conversation and
that the information
shared is understood

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 9

Navigating the Moral Journey to
Consent (2 of 3)
listening and respecting the
acknowledging the person’s right to have
acquired wisdom and a family member,
previous experience friend, or community
of the person member present

demonstrating
being sensitive to
compassion and
cultural and language
concern for the
issues.
person’s well-being

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 10

 Navigating the Moral Journey to
Consent (3 of 3)
Nurses can facilitate a valid
consent process by..
who are not fully informed
Copyright © 2020 by Elsevier, Inc. All Rights Reserved.
Respecting the values of the
person’s culture and ensuring
their unique needs are met
• Making interpreters available when Nurses are obligated to
necessary advocate for patients
• Recognizing the challenges some
persons face such as hearing or visual
impairments.
who require more time to reflect when their wishes have not
on alternatives been respected
11
 Competency, Consent & Substitute
Decision Makers (1 of 4)
 Competency
 A person is presumed
capable unless reasonable
grounds suggest otherwise
• If a person can
appreciate the nature
and consequences of
the proposed treatment,
they are considered
capable.
• Capacity can vary over
time.
• A person may be
capable of making some
decisions but not others.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 12

Competency, Consent & Substitute
Decision Makers (2 of 4)
 Capacity may be
evaluated by
 the health care
team
 external experts
 review boards
 the Courts

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 13

Competency, Consent & Substitute
Decision Makers (3 of 4)

Legislation across • Proxy identified by the person in advance,

through an advance directive, power of attorney
Canada outlines for personal care
the hierarchy of • Next of kin
substitute • Legally appointed decision-maker
decision-makers • Court appointed guardian

Expected to make
decisions based • Health professionals concerned that this is not
on the persons the case can appeal to review boards or the
expressed wishes, courts.
values, beliefs
and best interests

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 14

 Competency, Consent & Substitute
Decision Makers (4 of 4)
 Consent Challenges
 Children
• In some provinces, a child mature enough to understand
the nature and risks inherent in a procedure is given the
right to consent
 Persons with a mental illness
• Mental Health Acts across the country govern
approaches to consent to treatment in circumstances
where the person is deemed incapable
 Emergency situations
• If an incapable person is at serious risk of harm and a
substitute decision-maker is not available, then treatment
may proceed.
Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 15
 Law Respecting Consent to
Treatment
 Across Canada legislation related to
consent outlines…
 the requirements for informed
consent
 who is capable of consenting
 when a substitute decision maker
is required
 a hierarchy of substitute decision
makers
 the appointment (in advance of
becoming incapable) of a power
of attorney for personal care
 an application to the court for the
appointment of a guardian

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 16

 Duties of Guardians and
Attorneys for Personal Care

Guardians and attorneys for personal care are

required to
• exercise their powers diligently
• try to determine the incapable person’s prior wishes and
values
• make decisions that are in the person’s best interests
• consult with the person’s family, friends, and health care
professional whenever possible
Processes are in place, including the courts, if
health professionals are concerned that these
requirements are not being met.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 17

 Summary

Nurses must understand the ensure the protection of a person’s

legal and ethical autonomy especially those most
vulnerable
foundations for consent in balance the need to respect choice
order to while protecting persons from harm.

compassionate
Nurses must ensure the respectful
process of consent is valid.

Copyright © 2020 by Elsevier, Inc. All Rights Reserved. 18