week 04b consent issues
TRANSCRIPT
Work within a legal and ethical framework
CHCCS400cConsent issues
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David Smith
Learning outcomes:
By the end of this session, you should:Have a good understanding of the concept of consentHave an understanding of how this is important to us as welfare workers
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Legal, ethical, organisational
Consent
Ethical (industry code of ethics)
Organisational(Agency policies, code of ethics) 3
Legal (legislation, common law)
Like so many issues, ‘informed consent’ has legal, ethical and organisational policy dimensions
Consent:
We’ll start with the legal aspects- but keep this nearby, so we can remember that we’re just looking at legal aspects for now
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So.. What does ‘consent’ actually mean?
Consent
1) n. a voluntary agreement to another's proposition.
2) v. to voluntarily agree to an act or proposal of another, which may range from contracts to sexual relations.
A simple dictionary definition is:
Consent1) n. a voluntary agreement to another's
proposition. 2) v. to voluntarily agree to an act or proposal of
another, which may range from contracts to sexual relations.
Ok, so we’ve defined the term: can you think of times when this would be important for us to know about in the welfare industry?
Consent1) n. a voluntary agreement to another's
proposition. 2) v. to voluntarily agree to an act or proposal of
another, which may range from contracts to sexual relations.
There are times when there is a question as to whether someone has given consent… Perhaps:•Consent to service delivery•Consent to medical treatment•Consent to sexual activity
ConsentPeople can consent to things a number of ways.For example, consent can be1.Written
– People often think of this when consent is discussed, and with good reason- having a written record of somebody’s permission is a useful thing
eg signing to give consent for an operation
ConsentPeople can consent to things a number of ways.For example, consent can be1.Written2.Verbal
– Verbal consent is just as valid, but might be harder to prove- but you don’t always need to prove things, and typically, the client isn’t likely to deny that they gave permission for something to happen.
eg you ask a question, and the client says ‘yes.’
ConsentPeople can consent to things a number of ways.For example, consent can be1.Written2.Verbal3.Implied
– Implied consent is also valid, and we probably do it more often than we are aware of. Body language, hand gestures etc do, after all form a large part of our day to day communication
eg client opens mouth for a temperature to be taken
ConsentFrom a legal perspective, Section 10(2) of the ACT Human Rights Act specifically protects individuals from being subjected to medical treatment without their “free consent”.
(it also protects us from being experimented on and tortured, which is nice)
Consent
But even without that protection, there are legal systems in place to ensure that people give their consent to anything that happens to them.
Normally, a husband can’t decide what medical treatment his wife has
A shopkeeper can’t just decide that somebody must buy his products.
ConsentThe tricky bit is when we can’t be sure if somebody was able to give consent. For example:
ConsentThe tricky bit is when we can’t be sure if somebody was able to give consent. For example:
Can a severely intoxicated, mentally ill or elderly person refuse to give consent to life saving medical treatment?
ConsentThe tricky bit is when we can’t be sure if somebody was able to give consent. For example:
Can a severely intoxicated, mentally ill or elderly person refuse to give consent to life saving medical treatment?
If your answer was “no,” you’re taking away their right to control their own destiny
ConsentThe tricky bit is when we can’t be sure if somebody was able to give consent. For example:
Can a severely intoxicated, mentally ill or elderly person refuse to give consent to life saving medical treatment?
If your answer was “It depends how ill they are,” who decides this?
If your answer was “no,” you’re taking away their right to control their own destiny
ConsentWe could ask similar questions about other people:
Can a six year old sign a contract?
Can a severely intellectually disabled person give permission to sexual activity?
Can elderly parents let their children make financial decisions on their behalf?
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
Let’s look at these first few, one at a time
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
(We’ll get back to this one later)
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
“Informed” means that the consumer was provided with enough information to form a reasonable understanding of the nature and effect of the decision.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
In practice, this will usually mean discussing in some detail what will be done and what is likely to result if it is done (as well as, if appropriate, what will result if nothing is done).
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
“Voluntary” means the consumer agreed of their own free will, without the undue influence of other people or circumstances that could impair their independent judgment.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
A clear way of demonstrating that the consumer has been provided with a genuine choice is using a standard form to record consent- but this should be explained not just handed over to be signed.
google search form consent form sample parent consent form
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
This may also require thinking about whether there are any issues of significant duress or undue influence (eg a history of abuse by someone who is affected by the consent).
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
“Specific” means the consent is to a clearly defined activity. Again, use of a consent form will enable us to capture this information in a clear manner.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
“Current” means that the consent is not likely to be outdated because of lapse of time, or change of relevant circumstances.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
If there is any doubt about whether the client’s recorded consent is still current, they should be asked to reconfirm their wishes.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
So, for example:
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
Antione wants to take a group of young people rock climbing.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
He checks that they understand the risks involved (although he’ll do his best to eliminate any risks, they are still present).
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
He makes sure that they know, even at the last minute, that they can back out if they wish.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
A few clients have already signed permission notes for “all activities relating to the holiday program”, but he gets specific permission for this activity anyway.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
… and one of the clients has already shown he understood the risks on a previous occasion, and has never had a problem with it before.He checks regardless, and checks everyone is ok with it immediately before the event.
The law states that consent is only valid when it is:•informed, •voluntary, •specific and •current, AND •The client has the legal capacity to consent.
What is valid consent?
.. Which brings us to the final requirement: the legal capacity to consent.
To decide whether somebody has the legal capacity to consent, a court would ask “the Gillick test”, named after a previous court case where parents thought they should have been asked permission for a teen’s medical advice.
More info: http://www.miga.com.au/riskresources/library/11RRFS08.pdf http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf
Who has the ‘capacity to consent’?
To decide whether somebody has the legal capacity to consent, a court would ask “the Gillick test”, named after a previous court case where parents thought they should have been asked permission for a teen’s medical advice.
More info: http://www.miga.com.au/riskresources/library/11RRFS08.pdf http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf
Who has the ‘capacity to consent’?
The Gillick test asks:“does this child/ adult have the intelligence and maturity to understand the nature and effect of this proposed decision?”
This test of “mental capability” can also include adults with lower mental abilities or under the influence of drugs.
For example, the age that someone is considered old enough to consent to sexual activity varies greatly between nations, and at different times in history
http://en.wikipedia.org/wiki/Ages_of_consent_in_Oceania#Australian_Capital_Territory
Who has the ‘capacity to consent’?
In the ACT and NSW, the age that someone can give legal consent to sex is 16.
Who has the ‘capacity to consent’?
The law allows for young people close in age and power, and prohibits people with more power (eg teachers, guardians) having sex with them until they are 18 yo.
IMPORTANT NOTE: Sine the child cannot legally consent, this means that the person having sex with them is breaking the law, by having sex without consent.
The under age person is not breaking the law.
That gives us the general principles to work with.
Who has the ‘capacity to consent’?
Generally, a non disabled child who is 14 years of age is considered old enough to consent to medical treatment on their own behalf.
However, the doctor can apply the “Gillick test” and assess the child to have sufficient maturity and that the child adequately understands the nature and consequences of the treatment, and accept that child’s consent.
For consent to medical procedures, the Age of Majority Act (ACT) 1974 requires a parent or legal guardian’s consent for persons under the age of 18 years.
In NSW, the law is clearer, with a child aged 14 or over being able to consent (as can their parents, if the child is under 16)
Who has the ‘capacity to consent’?
For more details on what young people can do at their age, go to the link below for information in your state.
http://www.youthlawact.org.au/youth_law_matters_2013.pdf (ACT specific)
http://www.lawstuff.org.au/ (all states of Australia)
http://youthlaw.asn.au/for-youth-workers/publications/working-for-young-people/ (Victoria)
www.theshopfront.org/24.html (NSW)
There are laws allowing for people to plan for occasions where they lose their ability to consent.
Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf www.actlawsociety.asn.au/public-information/enduring-power-of-attorney
There are laws allowing for people to plan for occasions where they lose their ability to consent.
Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf www.actlawsociety.asn.au/public-information/enduring-power-of-attorney
This may be through a mental or other health concern, or other circumstances where you can’t make decisions, such as when you are overseas or in hospital.
There are laws allowing for people to plan for occasions where they lose their ability to consent.
Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf www.actlawsociety.asn.au/public-information/enduring-power-of-attorney
This may be through a mental or other health concern, or other circumstances where you can’t make decisions, such as when you are overseas or in hospital.
For people with mental illnesses, this can be a way of saying what treatment they do, or do not, want to have.However, the people making the decisions could still decide to give you something different from what you wanted.
Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf www.actlawsociety.asn.au/public-information/enduring-power-of-attorney
(Read more by following these links)
Scenario
• You are working with a population of homeless, unemployed and generally low income clients, aged between 15 and 25 years old.
• One of your co- workers has an old car for sale. He is aware that it is currently registered, and reliable if driven moderately and not overworked. He says he is asking for $900 for the car, but knows that it is probably worth a bit less (and would accept this if offered).
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So, let’s put what we know into practice:
Scenario • Marcus, one of your clients, has a part time job and would
like a vehicle so he doesn't have to catch the bus. You doubt he could afford to maintain the car, or register it in a few months’ time. It is unlikely that he would drive safely. His boss has agreed to advance him some pay and this, combined with a small amount of savings, will be enough for the asking price of $900.
• You don't think it is in Marcus' interests to buy the car. You don't think it is in Marcus' interests to pay the full price.
47What do you do?
The law states that consent is only valid when it is:•informed, voluntary, specific and current, AND •The client has the legal capacity to consent.
What is valid consent?
Are there any legal barriers to your co- worker selling the car to Marcus?
Remember:
The full pictureLegally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
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The full pictureLegally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
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But the law is not our only concern.
The full pictureLegally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
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But the law is not our only concern.
Our code of ethics adds that we have to also balance: •An attitude of respect for all people•An emphasis on empowerment, dignity and client participation
The full pictureLegally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
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But the law is not our only concern.
Our code of ethics adds that we have to also balance: •An attitude of respect for all people•An emphasis on empowerment, dignity and client participation
These factors would also need to be taken into account, for both you and your co- worker.
The full pictureLegally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
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But the law is not our only concern.
Our code of ethics adds that we have to also balance: •An attitude of respect for all people•An emphasis on empowerment, dignity and client participation
These factors would also need to be taken into account, for both you and your co- worker.
(and, of course, agency policies would need to be followed)
Learning outcomes:
You should now:Have a good understanding of the concept of consentHave an understanding of how this is important to us as welfare workers
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