Consent in dynamic situations

Dr Amanda Smith, MBBS, FANZCA, Senior Medical Adviser, Avant

Ruanne Brell, BA LLB (Hons), Senior Legal Adviser, Advocacy, Education and Research, Avant

Wednesday, 12 April 2023

Pregnant woman rests head in hand

Consent in dynamic situations

Some patients have a strong view of the care they wish to receive. This can be challenging when it goes against your advice or when circumstances change.

In the situation below, the capacity of the patient to provide informed consent raises the issue of whether a substitute decision maker should be called upon.

Patient’s strong opinion

A 41-year-old woman* was discussing delivery options with her obstetrician at the 28-week antenatal visit. She wanted a ‘natural birth’ and said she won’t require any pain relief for labour. She also expressed a strong desire to avoid a caesarean section.

Towards the end of her pregnancy foetal growth slowed and there were signs of placental insufficiency. The patient refused intervention until 41 weeks when she agreed to an induction of labour. After many hours in labour, the patient said she could not cope with the pain and agreed to try nitrous oxide.

Consent in new circumstances

Eventually the patient became very tired and distressed and the midwives suggested an epidural. She was no longer communicating well but nodded in assent and an anaesthetist attended to assess the patient and obtain consent.

Her partner said he was supposed to stop her from having an epidural or caesarean section “no matter what”. The patient was using large amounts of nitrous oxide for pain relief and not speaking to the anaesthetist but would nod or shake her head to answer questions.

Approximately an hour after the epidural was inserted the CTG showed signs of foetal compromise. The obstetrician told the patient and her partner the baby would benefit from an emergency caesarean section if the health of the foetus continued to deteriorate, to which both parents refused.

At this point the doctor contacted Avant for urgent advice.

Consent and capacity

When there is valid consent from the patient, the doctor must act in accordance with the patient’s wishes. It’s important that the patient understands the consequences of their decision, such as the risk posed to their own wellbeing and, in this situation, the wellbeing of the foetus.

Sometimes the situation changes and the patient’s prior position is no longer valid, and it is not possible to have an effective conversation with the patient to gain their consent. In that case, the situation should be discussed with the patient’s substitute decision maker. They must make a decision in the patient’s best interests and should be guided by what they believe the patient would have wanted, not what the decisionmaker themselves might want in the same situation.

For a patient to have capacity to consent, they must:

  • understand the information and consequences relevant to the decision
  • retain the information and recall the details of the discussion
  • use and evaluate the information throughout the decision-making process
  • relay their decision and understanding.

These situations can be very difficult, so speak to a colleague about the clinical situation and for support. Consider involving a social worker or psychiatrist to help assess the patient. It may also be beneficial to escalate the matter within the hospital, which may be hospital policy.

Key lessons

  • A patient with capacity has the right to refuse treatment, even if the doctor disagrees with the patient’s decision.
  • If the clinical situation changes, this should be discussed with the patient including an explanation of the likely outcome for the patient and the foetus.
  • If the patient loses capacity, the discussion should occur with their substitute decision maker, who should be guided by the patient’s wishes or their best interests.
  • All discussions should be well documented in the clinical notes.
  • Involve senior clinicians and/or escalate the situation to hospital management if needed.

Avant resource

Factsheet: Substitute decision makers

*Scenarios in this article are fictitious and any resemblance to real persons, living or dead, is purely coincidental.

This article was originally published in issue 19 ofConnect magazine.


IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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