Nurses Responsibilities in Obtaining Consent
Obtaining informed consent for specific medical and surgical
treatment is the responsibility of a physician. This responsibility is
delegated to nurses in some agencies and no law prohibits the
nurse from being part of the information-giving process. The
practice however is highly undesirable. This is so because it is not
right for you to obtain consent for a procedure that you are not in
control of. The person who is going to carry out the procedure and
who knows what is involved in the procedure is in the position to
obtain the consent as he is expected to explain to the client what
is intended before asking for consent to carry it out. Since you are
neither the one that will perform the surgery, nor are you the one
to administer the anaesthesia, you might not be in a good
position to explain to the client what is involved and therefore
should not be the one to obtain the consent. Often, your
responsibility is to witness the giving of the informed consent for
medical procedures. This involves the following:
• witnessing the exchange between the client and the physician.
• establishing that the client really did understand, that is, was
really informed.
• that the client freely-or voluntarily gives his/her consent.
• witness the client’s signature or thumb printing.
If you witness only the client’s signature and not the exchange
between the client and the physician, you should write “witnessed
signature only"" on the form. If you find that the client really does
not understand the physician’s explanation, then the physician
must be notified. Obtaining informed consent for nursing
procedures is the responsibility of the nurse. This applies in
particular to nurse anaesthetists, nurse midwives, and nurse
practitioners performing procedures in their advanced practices.
However, it applies to other nurses, including you, who perform
direct care such as insertion of nasogastric tubes or
administration of medication.
Tasks in Obtaining Ongoing Consent to Care for the client
Stage 1: Giving Information — every client must have a care plan
in which his or her assessed care needs and the care to be given
are recorded. For mentally competent people, the first stage
should be for you to inform them that they have a plan. Offer
those who can read the opportunity to read the plan and for those
who cannot read, explain the content of the plan. This is
necessaiy so that they can actively participate in the review of
the plan when the need arises. If they don"t know about the plan,
it will be difficult for them to participate actively in its review.
However, access to client’s health records can be refused where
the access would likely cause serious harm.
General Guide to the amount and type of information
required for client to make informed consent
The client should know the following:
• The purpose of the treatment
• The intended benefits of the treatment.
• Possible risks or negative outcomes of the treatment.
•Advantages and disadvantages of possible alternatives to the
treatment including no treatment.
Stage 2: Consultation with the client - Consultation with the
client implies that you take into account issues such as clients"
beliefs, values, preferences and perceived quality of life when
making a decision on their behalf. You will have information on
these only if you consult with or involve the client. If there is no
evidence of consultation with the client then you are delivering
care and treatment with their “compliance” rather than their
expressed consent. You are therefore cautioned not to confuse
compliance with consent. For consent to be valid, the client
should be given adequate information and have the mental
capacity to be able to understand and process the information. If
the first two parts of this process, that is, information giving and
involvement of the client, have not been complied with, then a
valid consent cannot be given.
Stage 3: Active Participation of the Client - You should encourage
the clients to be actively involved in planning and reviewing their
care as recorded in their care plan. Active participation of the
client can have potential benefits which include:
• The client’s care plan is likely to be more individualized if the
client had helped to compile it.
• Clients are assisted to become more independent and thus
minimize hospitalization.
• The care plan is likely to be a more valid and workable tool from
the client perspective and thus increase the client’s co-operation
with the strategies prescribed.
Stage 4: Consent to care - Here the client agrees to the care. For
any person to be able to give a meaningful consent to his or her
care, the previous three stages must be followed. Without
adequate information, the ability to process the information and
the opportunity to ask questions, the client cannot give a valid
consent.
Stage 5: Making an advance statement and/or directive. The
logical and progressive stage after giving consent to the care that
was suggested would be for the client to specify the care
strategies he wants or does not want in any given situation.
Clients who have made an advance statement and/or directive
should be able to feel confident that their wishes will be complied
with even if they are not able to give their instructions personally.
This can be seen as the ultimate in client participation,
empowerment and taking control. An advance statement is a
statement of views or wishes to be taken into account in decision
making and is not intended to be binding on the health care team.
An advance directive or living will is intended to be binding on the
health team. For example, an advance directive is not to institute
artificial feeding for people at the end stage of dementia.
Although some people might see the use of a feeding tube as just
a different method of delivering food and fluids, and therefore to
be maintained at all cost rather than allow the client to starve to
death, others might view it as an invasive procedure or as a
technological support. Some people may consider this method of
feeding as too invasive, but unless an advance directive
specifically refusing this technology has been made, it may be
used if seen by you to be appropriate in the client’s best interest.
Problems in Obtaining Consent
Sometimes you may encounter a client or members- of a client's
family whom for various reasons resist or oppose treatment. Such
reasons may be religious, socio-cultural, economic or-politically
based. Examples of such problems include:
• The patient who needs but refuses treatment.
• The parent who refuses permission to treat a child with life
threatening illness.
• The mentally ill person.
• The intoxicated or belligerent clients.
• Client who gives and then withdraws consent for treatment, etc.
These situations create conflicts of values, rights and
responsibilities. For instance, the right to life and the duty to
preserve life versus the right to die and the duty to alleviate pain
and suffering. The risk of legal and ethical liability for failing to act
appropriately in such cases cannot be overstated.
Strategies to Resolve Problems in Obtaining Consent
In order to deal effectively with the problems from the client or
the family in obtaining consent, the nurse must integrate
fundamental principles of behaviour assessment and modification
into the treatment process. The steps are as follows:
• Assess the client to identity and deal effectively with any
psychosocial or physical difficulties that could be militating
against obtaining consent.
• Institute every effort reasonable and lawful to convince the
client to urge him to accept the required treatment.
• If a conscious and rational adult client or parent refuses to give
consent, he cannot be treated without risk of civil and criminal
liability. In such a situation, the refusal should be carefully
documented and witnessed. An example of this is “discharge
against medical advice”.
• Obtain legal consultation if the client’s condition is sufficiently
grave.
The Four Principles Approach to Ethics
The word 'ethics' is a generic term that refers to questions about
what is right or wrong, or good or bad, acceptable or not
acceptable in matters of human conduct, whereas "ethical'
implies conformity with recognised standards of practice. Four
principles are widely recognised as the basis of the ethical
underpinnings of healthcare law - autonomy (self-rule),
beneficence (doing good), nonmaleficence (not doing harm), and
justice (fairness). This section briefly considers these four
principles and their practical application.
Autonomy
Autonomy represents self-determination and is a person’s
capacity to make deliberated or well-reasoned decisions, and to
act on the basis of such decisions without coercion or undue
subterfuge manipulation. It represents the capacity of a person to
make reasoned choices on the basis of adequate information.
Respect for patients’ autonomy is pivotal to obligations such as
obtaining informed consent, maintaining confidentiality, and is
the basis of support behind drives to legalise physician assisted
suicide in some climes.
Beneficence
Beneficence is the moral obligation to do well. However, in some
management approaches, patients are placed in the line of harm
so beneficence tends to be considered in the context of non-
maleficence. Obligations to maintain professional competence,
promote medical research, develop better clinical guidelines
through evidence-based practice are further practical examples of
where the principles of beneficence may be applied. There is the
concept of paternalism often encountered in medical practice
which is the control of another person’s life in the name of that
person’s own “best interests” will often be justified using the
principle of beneficence. Example include going ahead with
procedures without obtaining consent or withholding distressing
news from a patient may be rationalised as being in patients’ best
interests. Nevertheless, this invariably undermines patients”
autonomy and rights to justice.
Non-Maleficence
The principle of non-maleficence is the obligation to avoid causing
harm, or the risk of harm to others. Instances of care in routine
medical practice may, however, involve doing, or risking, harm to
achieve a greater benefit for the patient. Examples include the
pain caused by the giving of an anaesthetic injection, surgery or
the administration of chemotherapy for the potential benefit of
the recipient. Non-maleficence has important and far-reaching
implications in dilemmas such as the withholding and withdrawal
of treatment, the application of ordinary versus extraordinary
care, and the acts versus omissions distinction in the law relating
to euthanasia.
Justice
The principle of justice is predicated on taking fair, just, equitable,
and unbiased decisions are taken in favour of the person either in
the greatest need or who stands to gain most. Based on proper
knowledge of the nature of health, patients’ pre-morbid
conditions, available management strategies and envisaged
outcomes, the provision of medical treatment should be deemed
to be just, having considered the overall circumstances.
Constraints such as lack of availability of human, financial and
physical resources inevitably means that rationing has to take
place, which may not be fair in all circumstances, especially to
patients and relatives who appears to be on the receiving side
and who do not understand the basis for the decisions taken.
Concept of Negligence
Negligence is a misconduct or practice that is below the standard
expected of an ordinary, reasonable, and prudent practitioner or a
careless or heedless conduct which falls below the standard
established by law for the protection of others against
unreasonable risk of harm. Technically negligence is the omission
to do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do or doing something which a prudent and
reasonable man would not do. In practical terms, negligence is a
complex concept of duty, breach and damage, which is suffered
by the person to whom the duty is owed. Thus, tortious liability
arises from a breach of this duty. Malpractice is that part of the
law of negligence applied to professional person such as
physicians, dentists and in some cases nurses. The term
malpractice is legally superfluous because legal liability of health
practitioners and other professionals is determined by traditional
principles of negligence and the various intentional torts. In other
words, there is no separate theory of malpractice liability. For the
nurse’s action to be considered as a malpractice the court has to
accept that a nurse acted on a professional status even though
the same principles of liability .would, be applied. Thus, you can
be liable for malpractice if you injure a client while performing a
procedure differently from the way other nurses would have done
it.
Before a case of nursing negligence or malpractice can be
established, four elements must be present:
• The nurse owed the client a duty of care — This implies that you
must have or should have had a relationship with the client that
involves providing care. Such duty is evident when you have been
assigned to care for the client.
• The nurse breached that duty - There must be a standard of care
that is expected in the specific situation, which the nurse did not
observe. This implies that you failed to act as a reasonable
prudent nurse under the circumstance. The standard can come
from documents published by the national or professional
organisations like the National Association of Nigerian Nurse and
Midwives, organisations like the National Association of Nigerian
Nurse and Midwives (NANNM). Boards of Nursing like the Nursing
and Midwifery Council of Nigeria (NMCN), Institutional policies and
procedures, or Textbooks or Journals, or it may be stated by
expert witnesses.
• The client consequently suffered harm - The client must have
sustained injury or damage or harm. The plaintiff (client or his
representative) will be asked to document the physical injury,
medical costs, loss of wages “pain and suffering” and any other
damages. The nurse’s negligence (act of omission or commission)
was the proximate or legal cause of the plaintiffs injury. It must
be proved that the harm occurred as a direct result of the
nurse’s failure to follow the standards and the nurse should
have known that failure to follow the standard could result in such
harm.
These elements can be summarized using the equation as Duty of
care +
Damage = Negligence.
