Who can give consent?

Even though consent is not legally binding and can be revoked at any time before a procedure, and in the case of photography during or after, there are legal requirements as to who can give their consent.

Children

Young people over the age of 16 can give or withhold consent to their own medical and dental treatment (Family Law Reform Act 1969, Section 8) without reference to a parent or guardian (Hawkins C 1985). Children under the age of 16 may also be able to give consent if they are judged to have the necessary understanding. Parental consent should be obtained as a matter of prudence. The circumstances under which children under the age of 16 can give or withhold consent are difficult to define. The DoH Children Act 1989 Guidance and Regulations Volume 3, Family placements, 2.32 says:

“Children who are judged able to give consent cannot be medically examined or treated without their consent. The responsible authority should draw the child’s attention to his [or her] rights to give or refuse consent to examination or treatment if he [or she] is 16 or over and if he [or she] is under 16 and the doctor considers him [or her] of sufficient understanding to understand the consequences of consent or refusal.” (British Agencies for Adoption and Fostering 1991)

Lord Scarman said with regard to the Gillick case in 1985;

“If the law should impose upon the process of growing up fixed limits where nature knows only a continuous process the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change.”

“Where appropriate, according to age and understanding, the consent of the child should be obtained before any medical examination or photography.”

The report stresses the importance of informed consent (Bryson D 1990) but the need for written consent was only expressed regarding videorecording. Similarly the Independent Second Opinion Panel considered that:

“. . . parental consent for standard physical, psychiatric and psychological assessment was implicit, including routine physical inspection and screening questions with inspection not going beyond an external examination of the anogenital area. Consent for more detailed anogenital assessment should be obtained when appropriate. The assent of the child should also be obtained.” (Independent Second Opinion Panel 1988)

They included under this the following modes of recording;

'''Modes of recording''' photography, one-way mirrors, audiotaping and videotaping.

They considered that written permission should be considered carefully and always obtained when: 1. Disclosures or allegations have been made 2. Further physical internal examinations have to be done under sedation or general anaesthesia.

Where a child refuses consent if a parent gives consent we are legally protected if go ahead but doctors are generally reluctant to proceed unless there is a life-threatening situation. This holds for medical photography we should not proceed without the child’s consent.

It is necessary in this situation to carefully explain to the child what is needed as with any other patient. This is also a case where in explaining the need and use of the photographs we should talk to the child first and not the parent, similarly talk to the disabled person not their helper. Parents, guardians and other persons responsible for children. (BAAF 1991)

General principles regarding parental responsibility

• Where parents have delegated the care of their children to others, they can also delegate their power to consent to medical treatment.
• Where a local authority have parental responsibility for a child it may in appropriate cases, delegate the power to consent to medical treatment to others eg. the carers.

Categories of medical treatment

The recommendations by the British Agencies for Adoption and Fostering (BAAF) divides medical treatment into three categories (BAAF 1991):

1. Urgent treatment - recommended by a medical or dental practitioner in order to alleviate or cure a child’s pain or distress. (Where life is in danger doctors may proceed without either the child’s or the parent‘s consent.)
2. Prophylactic treatment - aimed at the prevention of disease.
3. Other treatment - includes a wide range of medical, surgical and dental treatments mainly elective. This would include medical photography as an adjunct to such treatment.

Children in local authority accommodation under section 20 Children Act 1989.

Children & Young people remanded into local authority accommodation or subject to a residence requirement within a criminal supervision order under Sections 23 and 12AA respectively of the Children & Young Persons Act.

• Local authority has no parental responsibility and therefore no power to consent to medical treatment on the child’s behalf unless this has been delegated by the parent or other person with parental responsibility.

Children subject to care orders and interim care orders

• Local authority has parental responsibility and may therefore, in the case of children too young to consent or refuse consent to treatment on their own behalf exercise its powers to consent to treatment and, in appropriate cases, delegate that power to the child’s carers.
• Parents also hold responsibility (except for an orphan for whom no guardian has been appointed) but the local authority may determine the extent to which they are to be permitted to exercise that responsibility

Court proceedings pending

• No medical examination or assessment for the purpose of providing evidence may go ahead without the court’s permission. Children in care who are placed with their parents (Placement of Children with Parents etc. Regulations 1991)
• Agreements should be made in every case covering the arrangements for the exercise of responsibility for consent to medical examination and treatment.

Children placed for adoption

• Birth parents retain responsibility for children of any age who are placed under the Adoption Agencies Regulations unless they have been freed for adoption.
• Dependent on legal status of child
• In case of children freed for adoption only the agency holds parental responsibility
• Children in adoptive placements - the situation regarding parental responsibility should be agreed in written form prior to placement. Children subject to emergency protection orders
• The applicant for the order has parental responsibility as long as the order lasts.
• Court has power to make directions with regard to medical examination or assessment.
• Court’s leave is required for examination or assessment for evidential purposes.

Wards of court

• High court has the right and power to consent to medical treatment on the ward’s behalf and the courts directions should be sought (Brahams D 1987).

The availability of this type of information prior to medical photography is obviously essential and a standard procedure laid down in coordination with the hospital and other agencies is necessary (Butler-Sloss 1988), see also section 5 regarding Organised policy.

Psychiatric patients

A psychiatric patient’s rights are automatically suspended if he (or she) is detained for treatment. Treatment of the mentally sick is decided by their doctors alone. The Mental Health Act 1983 has defined treatments which need the patient’s informed consent and/or a second medical opinion before treatment can be given.

Photography relates to other treatments which can be given at the responsible medical officer’s discretion. Use of photographs of mentally ill patients is discussed by Cull PG and Gilson CC 1986.

Mentally disabled

The ability to give informed consent requires an understanding of what is involved in the photography and the uses to which the photographs may be put. The rights of the mentally disabled have been described in terms of their “right to self-determination” . The patient’s reaction to the information provided, eg. asking specific reasonable questions simply, may demonstrate an ability to consent.

Schunemann H 1984 provides a useful summary regarding informed consent for the mentally disabled:

1. Incapacity and the inability to consent to medical treatment should not automatically be equated.
2. The refusal of medical treatment by a mentally disabled person may have to be respected, provided that it is not conditioned by the mental disease.
3. The patient must be informed about the planned treatment even in those cases where he or she is deemed unable to render a legally valid consent to treatment.

Written, informed consent would generally still be needed from the person’s legal guardian whether that is a relative or the local authority after the patient’s own consent.

Anaesthetised patients

Illustrative records of patients taken while they are under anaesthesia such as photography or more commonly videorecording of endoscopic or microscopic procedures still require consent. This should be obtained beforehand as part of the surgical consent form if not as soon as possible after the operation (Cull PG et al 1986).

Implied consent could be assumed for all records of surgical procedures but routinely consent should be obtained especially where there is a likelihood that they are going to be used for publication, teaching or medical research.

Patients temporarily unable to give consent

A patient unable to give consent due to their unconscious state or severity of the medical condition can be photographed as part of the medical process but consent should be obtained from them as soon as they are able to do so. A relative or the hospital administrator can give temporary authorisation (Cull PG et al 1986) . Such material should not be used for teaching or publication until consent has been obtained.

Deceased patients

Material relating to deceased patients who have not given consent prior to their death, especially illustrations which may identify them, should not be used until permission has been obtained from their next of kin. If the material has evidential value it must be retained for the statutory retention period (Dept of Health 1989), dependent on what patient’s condition was, ie. until a negligence claim cannot be made. It is inadvisable to destroy such material as recommended by Cull P et al 1986, it is safer for it to the retained but not used. See also [[Guidelines for Bereavement Photography]]

Retraction of consent

Consent to photography at one particular time does not constitute consent for repeated photography in the near future or years to come. Consent to photography does not remove the right to revoke or change its extent. If a patient has agreed to be photographed but only later realises they would need to be totally nude they can at that point refuse consent. It is therefore important to explain what is required fully prior to consent and photography.

Eligibility / ineligibility to give consent

It is always necessary to be aware that a patient or their parent may not be eligible to give express consent that is legally valid. We must always carry out our usual consent procedure with all patients even if they are ineligible to give consent and we may have to repeat what we are going to do to the guardian or whoever holds responsibility to give consent.

The situation may arise where a patient’s card does not contain sufficient information. It is not really our place to pry for further details especially from parents where it may cause offence. This is one area where a recognised procedure within the hospital is required so that the illustrator knows the situation before the patient arrives to be photographed.

Consent to medical research

Consent to photography for clinical research should be considered by the Health Authority’s or hospital’s ethical committee. It should be included as an integral part of the research protocol not separately. Consent to medical practice originated from case law but for medical research developed out of the Nuremburg code. The findings of the Nuremburg trials regarding the medical research undertaken by Nazi doctors led to a serious concern about the use of non-consenting adults. There are still a number of cases arising in the United States and United Kingdom of unauthorised research, especially during the Cold War period into the effects of radiation.

The Declaration of Helsinki (Hawkins C 1985) regarding medical research, drawn up by the World Medical Association in 1964 and revised in 1975, is publicly endorsed by the medical profession. A distinction is made between research undertaken for the patient’s benefit or solely to acquire knowledge and of no immediate benefit.

If you suddenly discover that you are taking a lot of photographs which are clearly part of an ongoing research project you should check with the researcher concerned that consent to photography was included in the protocol.

Most patients will have been asked to sign a form consenting to be involved in the trial, the photographic element should have been included in this. The occasional illustrative photograph for publication or teaching can be consented for in the usual way.

The ethical and moral issues regarding medical research are as much the concern of the medical illustrator as any other member of the health professions. Informed consent (Wade OL 1982, Dudley HAF 1984) and the consent of children to be involved in research (Hawkins C 1985, Pearn J 1984, Dworkin G 1978) are important aspects of clinical and surgical trials. The use of photography can infringe a patient’s rights as much as any other part of medical research.

Extending the original consent

Consent to the original photography does not guarantee consent to further disclosure.

Case study

Clinical photographs were taken of a patient after a car accident. She was 7 months pregnant and sustained severe bruising to the abdomen, right breast and shoulder. She agreed to their use by her solicitor and for teaching but not when approached later for their use in a medical journal.

Possible further uses of clinical photographs - Medical records, Case presentation - Postgraduate Medical Centre, Solicitor for medicolegal use, Medical journal.

Consent can be extended if necessary by writing to the patient or telephoning them if no reply to a letter, most patients will agree to their photographs being used for publication or even marketing, if approached in the right manner, but it is only right that they should be consulted and their permission not taken for granted.

The possibility of extension can be written into the consent form. For example, ‘If your photographs are required for publication you will be asked for further consent to this’.

How far you went in explaining the uses the photographs may be put to in the original consent may alter how the patient reacts to a request for extending it. For example, if you knew when taking photographs of a child that they were possibly to be used for legal purposes. If you did not declare this their admissibility might be called into question. Jones B 1994 recommends that consent for audiovisual material should be twofold, firstly for the original photography and then secondly after final editing; in this situation it would obviously be vital that the patient knows why the original recording is being made and even become involved at an earlier stage of editing as a refusal after the final edit would be costly.

Guidelines are needed to clarify where the consent is to be widened. For example, is it up to the photographer or consultant to ask for permission for publication. Hopefully with the changes puy in place by the NHS and through Medical Education all clinicians realise the need to ask for further consent.

Resources

Weblinks

Paediatrics and Consent http://www.nurseseyesite.nhs.uk/spec_area_paediatric/child_consent.asp