Issues Of Consent

As a practitioner in the sexual health setting it is essential to consider the boundaries and issues of consent to medical treatment. After all, we are engaging clients into a situation where arguably they may feel vulnerable and coerced into agreeing to procedures and tests that they are uncomfortable and unfamiliar with. The expanded role of the nurse places practitioners at the forefront of patient care as never before. The nurse who runs her own sexual health clinic or performs minor operations must familiarise herself with the concepts of consent to treatment in order to practise in a way that is respectful and supportive of the patient as an individual.

Nurses working within the arena of sexual health must give careful consideration to the following judgement. It implies that to perform any kind of procedure without the patient being fully aware of the implications and subsequently offering their total consent would leave the practitioner vulnerable to accusations of assault: 'Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages' (Justice Cardozo cited in Kennedy and Grubb 2000, p. 575).

'The right of a person to control his or her own body is a concept that has long been recognised at common law. The tort of battery has traditionally protected the interest in bodily security from unwanted physical interference. Basically, any intentional non-consensual touching which is harmful or offensive to a person's reasonable sense of dignity is actionable' (Malette v Shuman 1990). The meaning of this judgement appears quite clear, in that without consent any form of interaction with a patient may leave the practitioner vulnerable to legal action.

It becomes clear, then, that consent is a major issue in health care, and for the purpose of this chapter and in the context of sexual health nursing we will examine it in relation to the following:

• Consent to treatment

• Consent from younger people

• Consent to sexual relationships.

CONSENT TO TREATMENT

In order to begin exploring issues of consent let us start by examining a number of definitions. A basic definition of consent follows: 'Voluntary agreement to or acquiescence in what another proposes or desires; compliance, concurrence, permission' (Shorter Oxford Dictionary, 3rd edn, 1944). Perhaps this definition suggests that one party should voluntarily agree to, and be familiar with, what another party proposes to do with or for them. The Department of Health states the importance of consent within the context of the NHS: 'Patients have a fundamental legal and ethical right to determine what happens to their own bodies. Valid consent to treatment is therefore absolutely central in all forms of health care, from providing personal care to undertaking major surgery. Seeking consent is also a matter of common courtesy between health professionals and patients' (DH 2001a). Here the Department of Health builds on other definitions and states that the individual has a right to be treated according to the common principle that lies behind them throughout their treatment. In order to clear up the many issues and conflicting standards of consent in the National Health Service the DH issued a document that offered national guidelines on standards in consent. The formulations produced look at the issue from the following perspectives:

• Consenting adults

• Consenting children and young people

• Consenting people with learning disabilities

All of these documents are available from the Department of Health at their website. The main document, entitled Reference Guide to Consent for Examination or Treatment (DH 2001b), also sets out guidelines for practitioners when engaging patients in research trials or medical photography and, importantly in the field of sexual health, when soliciting their consent to blood tests.

For the practitioner in sexual health as much as in any other field there are a number of key issues to consider when obtaining the consent of a patient to treatment. Primarily, the patient must be able to give consent, be of an appropriate age and have the mental capacity to do so. It is worth always considering that no adult has the right to consent for another adult who has the capacity to consent for him- or herself. In practice, one of the challenges may be where an individual, perhaps a husband, is translating for another, maybe for his wife. The practitioner involved in this situation would need to be very sure that the patient fully understands what she is consenting to, and in most circumstances it would be more appropriate to have an independent interpreter present.

FORMS OF CONSENT

Express consent is given when the clients clearly state that they wish to undergo a given procedure that the doctor or nurse has fully explained to them. 'Consent is express when the patient explicitly agrees to what is proposed by the doctor. It need not be set out in any specific form and it need not be in writing' (Kennedy & Grubb 2000, p. 583). The DH guidance for consent provides a number of consent forms for a variety of situations. However, written consent is not a requirement of a consent procedure, but it is proof or evidence that the course of treatment was agreed on.

There may be other situations where the patient puts himself or herself forward for treatment where the intricacies of consent have not been discussed: this may be termed implied consent. 'On one view, it is said that the law implies consent from the patient's conduct, i.e. deduces his state of mind. Another view which we think more tenable would describe implied consent as something of a fiction' (Kennedy & Grubb 2000, p. 589). Professor John Flemming, cited in Kennedy and Grubb (2000, p. 589), offers the following examples of what may be defined as implied consent: 'Consent may be given expressly, as when a patient authorizes a surgeon to perform an operation, but it may just as well be implied: Actions often speak louder than words. Holding up one's bare arm to a doctor at a vaccination point is as clear an assent as if it were expressed in words.' So here the practitioner can consider the varying degrees and definitions of what actually constitutes consent. Perhaps it would be wise when preparing her practice that the practitioner consider the implications of each procedure that she carries out. Would it be sensible to have written consent for patients who undergo cryotherapy, because of the risk of scarring? Or should we just accept the implied consent of the patient removing their clothing and positioning themselves comfortably to accept treatment?

Alternatively, owing to the life-changing potential of a positive HIV test, should the practitioner obtain written consent, to demonstrate that a dialogue surrounding the issues has taken place? These are questions that the individual practitioner or the clinic in which they work must answer for him-, her-, or itself. It would be wise to prepare any policy by first engaging with the DH materials on consent, which are readily available.

YOUNG PEOPLE

Perhaps one of the most controversial areas of consent for sexual health practitioners is that of young people consenting to examination and treatment. The tests of Gillick competence or Fraser guidelines have for many years been used as the benchmark for young people making autonomous decisions regarding their health. In practice, if a young person is considered competent, then the practitioner can go ahead and provide the treatment that they request. Lord Scarman, cited in Mason et al. (2002, p. 319) offers the following affirmation: 'It can be taken as being now accepted that a doctor treating a child should always attempt to obtain parental authority but that, provided the patient is capable of understanding what is proposed and of expressing his or her wishes, the doctor may, in exceptional circumstances, provide treatment on the basis of the minor's consent alone. The decision to do so must be taken on clinical grounds and, clearly, must depend heavily on the severity and permanence of the proposed therapy' (Mason et al. 2002, p. 319). Perhaps the 'exceptional circumstances' in the field of sexual health would consist in the need to protect the confidentiality of the individual and their future sexual health. Scarmans final sentence talks of the severity of the therapy, and, as we've seen in recent times, decisions to obtain the consent of minors for terminations of pregnancy have been challenged by their parents in the UK courts.

In order to give further clarity to practitioners the Department of Health released guidelines in 2004 for the treatment of young people: 'Best Practice Guidance For Doctors and other Health Professionals on the Provision of Advice and Treatment to Young People Under 16 on Contraception, Sexual and Reproductive Health' (DH 2004c).

The document clearly sets out the parameters in which the practitioner should work when offering sexual health services to under-sixteens:

Doctors and health professionals have a duty of care and a duty of confidentiality to all patients, including under 16s. This guidance applies to the provision of advice and treatment on contraception, sexual and reproductive health, including abortion (DH 2004c).

It is considered good practice for doctors and other health professionals to follow the criteria outlined by Lord Fraser in 1985, in the House of Lords'

ruling in the case of Victoria Gillick v West Norfolk and Wisbech Health Authority and Department of Health and Social Security. These are commonly known as the Fraser Guidelines: see Box Five.

So here we have some clear guidelines that may support practitioners in their decisions to treat young persons of less than sixteen years of age.

A further dilemma that faces nurses in the area of sexual health is that of young people under sixteen accessing and using sexual health services. The law clearly states that the age of consent for a young person to engage in sexual activity is sixteen; this applies whether they are gay, straight or bisexual. Here then is our first dilemma: if we are offering young people sexual health screenings, distributing condoms and referring them for termination of pregnancy, are we encouraging illegal activity and in danger of coming into conflict with the law? The Sexual Offences Act 2003 (Home Office 2004) does offer some guidance to support practitioners in their work with young people: 'Although the age of consent remains at 16, the law is not intended to prosecute mutually agreed teenage sexual activity between two young people of a similar age, unless it involves abuse or exploitation' (The Sexual Offences Act 2003). The act itself also clears up an area that could become a minefield for sexual health practitioners dealing with young people. The act contains extensive legislation for the purpose of protecting young people. Among this legislation is Section 14 which is headed: 'Arranging or facilitating commission of a child sex offence'; here it is made quite clear that a nurse, doctor or practitioner engaged in treating, protecting or advising a young person in a sexual health service context need not fear being accused of preparing a child for, or assisting a child to commit, a sexual offence. The legislation states that:

Box Five

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