This assignment will be an in depth exploration of consent to treatment in children as an issue affecting practice .An analysis of both ethical and legal perspectives relating to consent to treatment will be explored and the possible solutions will be highlighted .In ethical issues the following will be looked at : autonomy ,beneficence, non-maleficence and justice. The legal issues such as duty of care and decision making will be analysed .The parental and professional responsibilities and their implications will be dealt with. The attached scenario examines some of the ethical and legal issues that may arise concerning parental decision making regarding surgery on children. It uses two cases, each of which raises issues concerning children's competence to be involved in decisions; the notions of best interests and best health interests; how interests are related to wishes and welfare the role of parents in assessing best interests and parental rights in deciding for their children.The scenario is attached on appendix 1
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1.Ethics is relevant to clinical, practice-based issues and it affects all areas of nursing practice. It is concerned with right or wrong although agreeing on what is right can be challenging (Chaloner 2007).Ethics and law are closely related
2.In the healthcare practice the Utilitarian ethics (Bentham 1748-1932 and Mills 1806-1873 and the Deontological theories cited by Cooke and Hurley (2008)are commonly used to resolve moral dilemmas. The two theories take opposing views about the rightness and wrongness of acts and decisions. Patients are individual persons with their own opinions and aims in life, which require them to act intelligently in what they do. In order for them to act intelligently they need to be allowed to make their own decisions and given the right information. Deontology is a theory that says decision should be based on whether or not an action is morally right with no regard for the result or consequences. Utilitarianism is a theory that is bases decision on the greatest good for the greatest number (Videbeck 2006).
Autonomy is the principle of self determination, freedom of choice or being your own person (Parker and Dickenson 2001). Chaloner (2007) viewed autonomy as the idea of moral reflection, for example choosing your own moral position and accepting responsibility for the kind of person you are In agreement with above definition ,Hendrick (2004) equated autonomy with integrity, dignity and independence and identified it with qualities such as self assertion and critical reflection .Autonomy literally means self rule. Respect for autonomy demands that healthcare professionals respect autonomous choices made by patients and that patients are not deceived about their diagnosis (Brazier 2003).For example the nurse respects the client’s autonomy through patient’s rights, informed consent and encouraging the client to make choices about his or her health care.
Videbeck (2006) defined the principle of beneficence as one’s duty to benefit or to promote good for others. Maclean (2001)viewed beneficence as a positive obligation to provide and to balance benefits against risks and costs . From a nursing perspective the responsibility for the patient’s well being and avoiding actions that are detrimental to them as laid down within the code of conduct Therefore the principle of beneficence supports the obligation to do good. Nonmaleficence is the requirement to do no harm to others either intentionally or unintentionally(Videbeck 2006).It requires that one should not inflict harm to others .Contrary to beneficence ,nonmaleficence is a negative obligation which can only occur through an act of commission to inflict harm on others as opposed to an act of omission even when such an act of omission results in harm to another person.
Justice refers to fairness ,that is treating all people fairly and equally without regard for social or economic status ,race ,sex, marital status religion or cultural beliefs (Stauch et al 2006, Videbeck 2006).The above principles have a significant in meaning in health care. Therefore the nurse can minimise the risk of lawsuits through safe competent nursing care and accurate documentation. For instance ,the clause of the Code of Nursing and Midwifery Council (NMC 2008) states that nurses have a duty of care to their patients who are entitled to receive safe and competent care.
3.Consent refers to the right of the individual in law to determine what shall be done to his or her body (Rodger 2000).This statement is supported by Griffith (2004) who clarifies that consent is a state of mind personal to the patient where they agree to the violation of bodily integrity. In clinical environment this includes the right of the individual to refuse treatment even if the outcome of this is detrimental and may even cause death. For consent to be valid in law a patient must be capable of making that decision (Tingle and Crib 2003). Dimond (2005) explains how capacity to consent was established in a case where a judge suggested a three part test to determine whether a patient possessed the capacity to consent :the patient must understand and retain the relevant information, he must believe in it and be able to weigh this information in the balance before reaching a decision (McHale and Tingle 2004).However this process should be free of any duress.
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The practical significance of the law of consent is that it encourages a patient’s trust , co-operation and confidence and it protects the practitioners from criminal charges and civil claims whey they treat patients. Failure to obtain consent may result in legal action or disciplinary procedures against the practitioner by their regulatory body (Rodgers 2000).
Rational for choice.
Children and young people are believed to be incapable of weighting the risks and benefits . Children, because of age-related reasons are a vulnerable population and protecting their health is a social ,scientific and emotional priory (Merlo et al 2007).They are considered to be vulnerable subjects with whom special protection is needed. The Mental Capacity Act (2005) concurs with above by providing a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. The dying, the aged who may be unable to comprehend the implications of treatment and the mentally ill or those with learning disabilities all fall into the category and are considered to be vulnerable. The Nursing and Midwifery Council (2008) clause 3.9 informs the nursing staff of their professional duty towards children in the matter of consent and maintains that nurses must be aware of the legislation and the local protocols. In the Royal Bristol Infirmary Inquiry ,Kennedy (2001) highlighted that some of the recommendations were that the parents and the public should be included in decisions about their treatment and care of their children. Ibid (2001) suggested that for the future, children in hospital must be cared for in a child-centred environment, by staff trained in caring for children and in facilities appropriate to their needs.
In the modern era, the ethics of nursing has shifted more toward the promotion of these rights and the duties of the nurse (McHale & Gallagher 2003). This principle was identified previously in the Patients Charter: Services for Children and Young People (Department of Health, 1996) which highlighted the rights of children and young people to be involved in choices about their care and treatment.
In order to design and deliver services around children and young people,
their voices need to be heard and their perspectives acknowledged. Legal consent rests on the competence of the individual while the ethical aspects of consent are concerned with the respect and autonomy of the individual (Tschudin 2003).
5.Identify legal aspects & make links with ethical concepts under discusion
The present age of consent in children was established in the Family Law Reform Act 1969 (Dimond 2003) .Section one of this act gives a young person of 16 or 17 the statutory right to give consent in their own right, without also obtaining from their parents .A paternalistic decision must be made to protect the children from any harmful consequences, as the nature of medical decisions is complex( Chadwick and Tadd 2003). Recently there has been a growing recognition of the rights of children, backed by legal instruments such as the United Nations Convention on the Rights of the Child 1989 and, in the UK, the Children Act 1989.Also the International Council of Nurses (ICN 2007) advocates for promoting the rights of the hospitalised child, including parental involvement in caring for the sick or institutionalised child or the child being cared for in the community. These represent a shift from
a highly paternalist view to a more rights-based approach in recognising the
rights of children to adult protection alongside a right to participate (Parekh, 2006).Children do have rights as enshrined from the international and national legislation. For example the United Nations Convention on the rights of the Child (1998) advocates for the rights of every child to self determination, dignity , respect, non-interference and the right to make informed decisions. The European Charter for Children in hospital (1988) states that children and parents have the right to informed participation in all decisions involving their health care. The legislation asserts that every child should be protected from unnecessary medical treatment and investigation. The Children Act 1989 insists that children’s wishes and feelings should be incorporated into the decision making concerning them. As observed in practice the tension between respecting and promoting children’s autonomy and recognising that often children need protecting from harm is not the one that can be easily be resolved..
DECISION MAKING PROCESS
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Ethical decision making is a rational way of making decisions in nursing practice. Decisions cannot be made in a scattered, disorganised way based on entirely on intuition or emotions. Wrong decisions are made because they are often made in haste, and may be based on past experience rather than new situations. Sometimes they are made without consultations and may be over-analysed (McGuire 2002).In making clinical decisions McGuire( 2002) agreed with Aiken (1994), six step process which is divided into six levels: identify, analyse data (2) State the dilemma (3) consider the choices of action (4) analyse the positives and negatives of each course of action (5)make the decisions (6) evaluate the effectiveness of the decision.
With regard to the Children Act 1989 ,parental responsibility includes the right of parents to consent to treatment on behalf of their child provided that the treatment is in the child’s best interest (BMA 2005). However , in practice there can be conflicting obligations and ethical dilemma ,if the practitioner does not believe that the parents are acting in the child’s best interests. It was felt that Danny’s parents were not acting in his best interests. The practitioner can apply to the court for assistance under section eight of The Children’s Act 1989 to prohibit the parents from exercising their parental responsibility(McHale and Tingle 2004). Children under the age of 16 are not regarded automatically and legally competent to make decisions about their health care .Danny is below the age of 16 and his parents have the power to consent. However, they have refused to give consent and the given scenario is that Danny’s life is at risk. The health care professionals have the right to act in the best interest, Dimond (2003). If the nurse considers that the child may be exposed to significant harm as a result of the parents refusal of consent , then section 47 of the Children Act 1989 places a duty on the local authority to assess the situation and to decide the best way forward (Pocock 2003).
In this scenario of Danny the actions of the nurses are consistent with the principle of beneficence. The principle of beneficence requires healthcare givers to strive to promote the interests of their clients by conferring benefits upon them (Maclean 2001).The ethical principle of nonmaleficence is executed for instance when the nurses consider that the patient may be exposed to a significant harm .The National Institute for Clinical Excellence (NICE 2006) suggested that treatment and care should take into account patients individual needs and preferences. Good communication is essential, supported by evidence-based information to allow patients to reach informed decisions about their care. However, Danny is considered to be competent to give valid consent because he had demonstrated a level of competence equivalent to that of adults since he understood what is proposed (Department of Health, 2001). Kennedy and Grub (1998) cited by Griffith (2004) argue that for children to have fully autonomous they pass through three developmental stages :the child of tender age ,the Gillick competent child and children16 and 17 years old.
This ruling came about as a result of the legal case Gillick v. West Norfolk and Wisbech Area Health Authority (1986) AC 112, which challenged the legal right of a medical practitioner to provide contraceptive advice and treatment to girls under the age of 16 without the consent of their parents (Mason and Laurie 2005). After lengthy legal proceedings, this trial was taken to the House of Lords. The Law Lords found in favour of the Health Authority. The key concept is that the child has the capacity to consent which has been referred to as Gillick or Fraser competence (DoH 2001). The Gillick Decision defined competence as the ability to understand information about the proposed treatment ,its purpose ,nature, risks and likely side effects(Shaw 2001).Although Danny’s parents had declined to give consent his behalf ,by law he was permitted to give his own consent. Danny was deemed ‘Gillick’ or ‘Fraser’ competent since he met the criteria laid down in the assessment of capacity. He had demonstrated the he found out the benefits of the operation and that he could retained the information enough to relate it to the healthcare professionals involved.
The principles of nonmaleficience and beneficence in nursing practice can lead to paternalism as pointed out by (Beauchamp and Childress 2001).The Children Act 1989 stipulates that parental responsibility includes the rights of parents to consent to treatment on behalf of their child provided that the treatment is in the child’s best interests(BMA 2005).This view of children’s rights in relation to autonomy and consent to treatment assumes that children are incompetent. However this paternalistic view does not consider the ethical principles of self-determination and autonomy of the child as laid down in the children Act( 1989) and the United Nations Convention on the Rights of the Child (1989).Consent in children also relies on the ethical principle of justice, which requires equal treatment for all with no discrimination on the basis of age. The National Service Framework for Children, Young People and Maternity Services (DoH 2004) states that there has been a shift in government policy to respect the autonomy of children. The issue of consent is related to the ethical principle of autonomy , an individual’s ability to make his or her decisions. It requires nurses to respect the choices clients make about their own lives (Hendrick 2000,NMC 2008).The utilitarian view would also support Danny being operated at the time, as it would correct and relieve the pain. Other options open to the nurse were to seek advice from the NMC advice service or to apply to the courts for an opinion in law as it was felt that Danny’s parents were not acting in his best interests. The other solution might have been to encourage Danny to share his feelings with his parents.
Role of a Nurse
As observed in practice the nurses’s decision about children’s consent can often be influenced by own experiences of parenthood. The Kennedy Report (2001) emphasised the need for specialist training to be given to healthcare professionals who deal with children regularly. The NMC( 2008) states that the nurse has a duty of care to the client. It sets out standards for achieving this duty of care, including obtaining consent from legally competent, informed person who gives consent voluntarily .For the children under the age of 16 awareness of local protocols and further guidelines from the should be followed .Nurses are often uncertain whether they should respect children’s wishes or whether they risk breaking the law (Lowsden 2002).However anxiety about litigation may lead to defensive practice, which is not in the child’s best interests.
In order to promote greater respect for the children’s autonomy nurses should keep up date with legal development which may have a bearing on practice .In order to promote a greater respect for autonomy in children , the commonly held attitudes and prejudices about children’s rights need to be addressed through education and relevant training .Consent in children also relies on the ethical principle of justice which requires equal treatment for all with no discrimination on the basis of age .In the document ,the Essence of Care (DoH, 2003) the NHS encourages healthcare professionals to ensure that high quality of care by exploring the benefits of benchmarking .This document focuses on privacy ,dignity and modesty as the cornerstone of freedom and autonomy. The essence of care offers nurses a toolkit for comparing, sharing and reflecting on the best practices, in order to improve care offered to clients(Davies 2003).In agreement with the above section 2.2 of the (NMC 2008) states that a nurse is accountable to promote and protect patients privacy and dignity.
Ensure good communication with parents
Nordam et al (2005) considers that good nursing care should involve the knowledge, language and communication between nurses and the members of the multidisciplinary team. Consultation with colleagues to ensure the best possible basis for the professional opinion is offered. Nurses and other healthcare professionals should ensure good communication with parents and as far as possible with the child, since communication is a two way and should attempt to ensure that both parties understand the other’s preferred options and the reasons for these. Therefore co-operation and communication between professionals will improve efficiency as well as promoting a conducive working environment. Renee (2007) supported the above by stating that developing an ethical framework will facilitate making a decision that is beneficial for both the patient and the nursing team.
To conclude this assignment I would say that the principles of beneficence ,non maleficence ,justice autonomy and respect are the characteristics which all healthcare professionals should have in order to avoid ethical dilemmas and litigation. Nurses should continue to advocate for patients. The needs and safety of the patients must always come first.