see also: [[Paediatric consent]], [[Violence in ED]], [Duty of care and involuntary restraint in ED](https://davidlempert.com/medCMS/article/16) - presentation with legal overview (higher level of detail than is required for exam) > [!references]- > - [Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments?](bookends://sonnysoftware.com/ref/DL/225388) > - [siva link: When patients behave badly: Consent, breach of the duty of care and the law.](bookends://sonnysoftware.com/ref/DL/273638) > - [Potentially incapable patients objecting to treatment: doctors' powers and duties.](bookends://sonnysoftware.com/ref/DL/238426) > > Other: > - [Cameron - consent and competence](x-devonthink-item://D6D8BC2E-B2A6-46F5-9F6C-DA3859973088?page=14) > - [Dunn - refusal of treatment](x-devonthink-item://9B6A0F66-93E9-4307-A5F9-2F9745BEBAF5) > - [MHWA principles for restrictive interventions (bear)](bear://x-callback-url/open-note?id=D3A5380B-A720-4352-8E12-9748DA872991-43360-0000148CA046510B&header=MHWA%20principles%20for%20restrictive%20interventions%20%28RMH%29) > [!key points] > - treatment without consent may be considered an assault > - mnemonic:: CURVES # competence vs capacity - the patient must be competent to give the consent or refuse - for consent to be valid, must be given by a person who has the capacity to make that decision > **capacity** is a *functional term* that refers to the mental or cognitive ability to understand the nature and effects of one’s acts > **competence** is a *legal term* of having sufficient capacity, ability, or authority # Types of consent - implied eg taking blood - verbal (legally as valid as written if documented) - written ## Valid consent ASCIF Actually # minors see [[Paediatric consent]] ## Mature minor principle The legal age for consent to treatment varies between states within Australia. However, when working with adolescents, regardless of their age, the [mature minor principle](x-devonthink-item://E383FFBD-9FD8-4DE9-B350-0F6F60D3E600?page=2186&start=250&length=26&search=The%20mature%20minor%20principle) can always be employed.This states that a young person can consent to treatment without parental knowledge if they are considered to be competent to do so by their treating clinician. # Relevant legislation see: [Emerg Medicine Australasia - 2023 - Kelly.pdf, p. 3, Selection: Relevant legislation](bookends://sonnysoftware.com/selection/DL/225388/1693557373/2/130/701/192/20) - mental health acts - guardianship and consent to medical treatment acts ## Victorian law specifics 1. A person has the right to refuse medical treatment in most circumstances. 2. The medical practitioner must usually seek the person’s consent prior to carrying out medical treatment. 3. A person’s capacity to consent is assumed unless there are indications otherwise. 4. A competent person can refuse treatment in relation to a current or future condition by completing a valid instructional directive. 5. Likewise, the person’s medical treatment decision maker can consent to or refuse treatment on their behalf if they no longer have the capacity to do so themselves. # mental illness and consent - a diagnosis of mental illness does not automatically preclude a patient from giving consent - the doc can asses the competence of pt to consent # Refusal of treatment / DAMA - autonomy - respect for individual freedom eg decision-making - beneficence - doing good - non-maleficence - doing no harm - justice - fairness questions to answer - is there a duty of care? - why do they want to leave - can someone else determine consent - what is their risk? - are they capable to refuse consent? *duty of care:* a duty of care exists when pt presents for treatment and is initially engaged in the process of tx, the tx can be reasonably provided. only exists while the pt is incompetent and the risk to them is still present. **management** - address reasons for tx refusal - provide additional info or correct misconceptions - Etoh/drug withdrawl mgmt - social work - recruit others to assist - family / friends - attempt to compromise - provide alternative care - eg offer SSU or the part of management plan they will do - arrange follow up **documentation** - witnessed DAMA form - patient's mental status - other findings supportive of pts competency - information given to patient - possible alternative management options - involvement of family members