Work within a legal and ethical framework

CHCCS400cConsent issues

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David Smith

Legal, ethical, organisational

Consent

Ethical (industry code of ethics)

Organisational(Agency policies, code of ethics) 3

Legal (legislation, common law)

Consent:

Let’s keep this nearby, so we can remember that we’re just looking at legal aspects for now

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Consent1) n. a voluntary agreement to another's

proposition. 2) v. to voluntarily agree to an act or proposal of

another, which may range from contracts to sexual relations.

Consent can bei. Verbal

ii. Written

iii. implied

Ask a question and the client gives an answer

eg signing to give consent for an operation

eg opens mouth for a temperature to be taken

Consent1) n. a voluntary agreement to another's

proposition. 2) v. to voluntarily agree to an act or proposal of

another, which may range from contracts to sexual relations.

Where will this be relevant in the community services sector?

Consent1) n. a voluntary agreement to another's

proposition. 2) v. to voluntarily agree to an act or proposal of

another, which may range from contracts to sexual relations.

Think of times when there is a question as to whether someone has given consent… Perhaps:

- Consent to service delivery- Consent to medical treatment- Consent to sexual activity

Consent to service delivery

Clients have the right to:•Decide whether or not to undergo treatment •Receive courteous and respectful service•Receive services that respect their dignity, privacy and promote their autonomy•Suitable information about the service to be provided•Request changes to/discontinuation of treatment without fear of interference, coercion, discrimination or reprisal.

Consent to medical treatment

Section 10(2) of the ACT Human Rights Act protects individuals from being subjected to medical treatment without their “free consent”.

Consent to sexual activity

Varies between states and countries and individualsVaries with age, power and metal capability

http://en.wikipedia.org/wiki/Ages_of_consent_in_Oceania#Australian_Capital_Territory

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

“Informed” means that the consumer was provided with enough information to form a reasonable understanding of the nature and effect of the decision. In practice, this will usually mean discussing in some detail what will be done with the information and what is likely to result if it is done.

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

Means the consumer agreed of their own free will, without the undue influence of other people or circumstances that could impair their independent judgment.

A clear way of demonstrating that the consumer has been provided with a genuine choice is using a standard form to record consent.

What is valid consent?

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent. Means the consent is to a clearly defined

activity. Again, use of a consent form will enable us to capture this information in a clear manner.

What is valid consent?

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent. Means that the consent is not likely to be

outdated because of lapse of time, or change of relevant circumstances. If there is any doubt about whether the consumer’s recorded consent is still current, they should be asked to reconfirm their wishes.

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

The ‘Gillick test’: a court would ask:“does this child/ adult have the intelligence and maturity to understand the nature and effect of this proposed decision?”

More info: http://www.miga.com.au/riskresources/library/11RRFS08.pdf

http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

The Age of Majority Act (ACT) 1974 requires a parent or legal guardian to consent to medical procedures for persons under the age of 18 years. However, if the practitioner assesses the child to have sufficient maturity to give consent and finds that the child adequately understands the nature and consequences of the treatment, that child is able to give their own consent.

More info: http://www.miga.com.au/riskresources/library/11RRFS08.pdf

http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

Generally, a non disabled child who is 14 years of age is considered old enough to consent to medical treatment on their own behalf

http://www.miga.com.au/riskresources/library/11RRFS08.pdf http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

In NSW, the law is clearer, with a child aged 14 or over being able to consent (as can their parents, if the child is under 16)

http://www.miga.com.au/riskresources/library/11RRFS08.pdf http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

In NSW, the law is clearer, with a child aged 14 or over being able to consent (as can their parents, if the child is under 16)

http://www.miga.com.au/riskresources/library/11RRFS08.pdf http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

Similarly, the age that someone can legally consent to sex varies from one place to another. In the ACT and NSW, this is 16.The law allows for young people close in age and power, and prohibits people with more power (eg teachers) until 18 yo.

http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf

Consent is valid when: (a)It is informed, voluntary, specific and current, AND (b)The consumer has the legal capacity to consent.

What is valid consent?

There are laws allowing for people with mental health concerns to lose their ability to consent, and strategies to address this.

An “advance directive” allows a person to make it clear what their wishes are, if they lose the ability to consent on their own.

www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf www.actlawsociety.asn.au/public-information/enduring-power-of-attorney

The full picture

So far, we’ve looked at legal aspects.

What does our code of ethics have to add to this?

• Attitude of respect for all people

• Emphasis on empowerment, client participation

Consent

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The full picture

What should our agency policy add to this?

ACTIVITY:Design procedures to

ensure consent is voluntary, specific, current and with consent

Consent

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A clear way of demonstrating that the consumer has been provided with a genuine choice is using a standard form to record consent.

google search form consent form sample parent consent form

Scenario • You are working with a population of homeless,

unemployed and generally low income clients, aged between 15 and 25 years old.

• One of your co- workers has an old car for sale. He is aware that it is currently registered, and reliable if driven moderately and not overworked. He says he is asking for $900 for the car, but knows that it is probably worth a bit less (and would accept this if offered).

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Scenario • Marcus, one of your clients, has a part time job and would like a

vehicle so he doesn't have to catch the bus every morning. You doubt he could afford to maintain the car, or register it in a few months time. It is unlikely that he would drive safely. His boss has agreed to advance him some pay and this, combined with a small amount of savings, will be enough for the asking price of $900.

• You don't think it is in Marcus' interests to buy the car. You don't think it is in Marcus' interests to pay the full price.

What do you do?

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