Treatment in the Emergency Department

There are three aspects needed for consent to be valid. An individual giving consent must have capacity to make that choice. The individual giving consent must be free from coercion and be giving the consent voluntarily. The individual must have sufficient information to understand their decision.

The Doctrine of necessity is a common law that allows “When an emergency arises in a clinical setting and it is not possible to find out a patient’s wishes, you can treat them without their consent, provided the treatment is immediately necessary to save their life or to prevent a serious deterioration of their condition. The treatment you provide must be the least restrictive of the patient’s future choices.”

All of the statements are true. Restraint must only be used when it is necessary to prevent harm to the patient. The restraint must be proportional to the likelihood of the patient's harm and the seriousness of the harm. It is restraint if you threaten the use of force for example "Sit down or I will make you" and if you use force.

The guidance on dealing with a situation like this is quite clear "‘Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. He must consider, so far as is reasonably ascertainable— (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.’ ‘In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of— (a) the person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.’"

Parental responsibility (under Children Act 1989) is with: • Mother responsibility by default. • Father if married to mother at time of child’s birth (or marries mother after birth), or • if registered on birth certificate, or • by Parental Responsibility Agreement with mother, or • by various kinds of court order

Proxy consent may only be given under two conditions: Previously appointed lasting power of attorney by the patient and by a court appointed deputy. The doctrine of necessity cannot be applied here as the patient is not in a life threatening or time critical situation. Spouses and/or children do not automatically gain the ability to provide proxy consent.

When time allows we should do everything possible to facilitate an individual to have capacity. Analgesia can be enough to allow someone to regain capacity. A quieter environment and supporting them may allow them to regain capacity. Delaying surgery, if it is not time critical, can allow someone time to regain capacity. It would not be appropriate to operate without consent as the doctrine of necessity would not apply.

In order for a patient to have capacity, they must be able to do all of the following: • Understand the information necessary to make a decision; • Retain the information long enough to make a decision; • Weigh the information; • Communicate their decision; A person does not have to be literate to communicate their decision. A person can communicate their decision through many different means such as verbal, written, sign language and communication devices. You must assume capacity and the onus is on showing a patient lacks capacity