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Consent to student involvement in treatment – the legalities

Senior lecturers Karen Bartholomew and Claire Hooks from Anglia Ruskin university explain the legalities of consent to student involvement in treatment.

Consent to student involvement in treatment – the legalities
The NMC (2008) and UK law both make it clear that women have the right to decline student participation in their care and that this right overrides the student’s need to gain knowledge and experience. Helmreich et al (2008) suggests gaining consent from an individual shows respect for the individual’s right to make decisions about the things that affect them; it empowers the individual with the authority to decide whether to accept or decline any form of care. Lynoe et al’s (1998) study (although a little dated now, still reflects what is happening in clinical practice today), found that 41% of 582 study participants had received care from students without prior consent. Of this 41%, 88% felt aggrieved that their consent had not been obtained. While acknowledging that pregnant women will, mostly, be asked if student participation is acceptable, we question whether women are routinely informed of their right to decline student involvement and if the legal conditions of valid consent are being truly upheld and applied in practice. From experience and anecdotal evidence, it appears that for pregnant women receiving routine care the presence of the student is often presented as a ‘fait accompli’. This piece explores some of the legal concepts around consent as applied to student participation in care.

Common law has long recognised the principle that every person has the right to have his bodily integrity protected against invasion by others (Payne-James et al 2009), based upon the right of self-determination. Unless there is consent to an act of touching by another, such an act will constitute a battery, trespass or act of negligence, for which damages may be awarded. In effect, consent is a defence to this and can render the act lawful.

In UK law the place of consent in medical treatment is well documented and supported by case law. In simple terms, three conditions need to be satisfied for the consent to be considered valid:
1. The patient must be competent to make the decision
2. The patient must understand the nature and purpose
3. The decision must be voluntary (free from coercion or undue influence).

These conditions apply regardless of the procedure. Capacity or competence to make the decision warrants its own separate discussion. However, in this piece we will discuss the last two requirements as applied to women for whom competence has been ascertained.

These conditions for consent are also supported by the NMC (2008), who state:
• You must ensure that you gain consent before you begin any treatment or care
• You must respect and support people's rights to accept or decline treatment and care
• You must uphold people's rights to be fully involved in decisions about their care.

The patient must understand the nature and purpose

It is noticeable from a women’s chat room that there is no clear general understanding of what students can do and how they are supervised. This could affect the way patients feel about the student and whether they agree to the involvement of students in their care (Snow 2010). Finnerty et al (2007) suggest that most often it is mentors who introduce students, but in doing so neglect to identify the student’s role. If the student or the student’s mentor fails to identify the student and their role is not defined, how is the patient able to give consent to the student being involved in the care provided?

While the NMC (2004) stated students must tell patients they are students and that the patient may decline care from them, from discussions with midwives and observation in practice this is a concept many find difficult. There are many who believe, as reported by Hamilton (2006) that patients should have no choice about the involvement of students in their care. He suggests that if they are receiving healthcare free at the point of delivery then they should be prepared to accept students unquestioningly; without doubt an interesting debate, but not a view upheld in UK law.

Interestingly, the evidence suggests that in the main, women do consent to student involvement and that this is mutually beneficial to both student and women. Suikkala et al (2008) reports that while patients and students view their relationship differently, both groups agreed that the focus of the relationship was that of ‘common good’. This idea was reiterated by Twinn (1995) and Modasia (2007) who found that women acknowledged that the students often cared deeply for them and did things and spent time that perhaps the mentor would not be able to do. 

Why then, do some patients not wish to be cared for by students? Reluctance for student involvement may be based on patient’s lack of knowledge (Price et al, 2008). Howe and Anderson (2003) suggest consent should be obtained in advance of the care in order for the patient to have time to consider the implications of their decision. Mires et al (2001) also looked at this. Concluding that there was benefit in providing antenatal information about students, they found that information leaflets raised patient awareness of students. Interestingly, the leaflets did not increase the acceptance of medical students, but arguably the choice was at least informed.

This concept of advance decision-making is valid as long as the consent is not applied as a ‘blanket principle’, whereby the patient consent is to everything in advance (RCOP, 2004). ‘Blanket’ consent has been rejected as a principle in UK law as outlined in Devi (1981), which stated that the consent gained was only applicable to the specific procedure for which it was sought. When applied in midwifery, how does the woman know how she will feel when she is in labour? And is the woman fully aware of all of the procedures that the student may be involved in? 

The decision must be voluntary (free from coercion or undue influence)

The third requirement for consent to be considered valid is that it must be voluntary, i.e. not given under duress. An example of this was represented in the case Re T (1992) where it was considered that a woman refusing a blood transfusion was under the undue influence of her mother (a Jehovah’s Witness), and so the validity of the consent was rejected and the treatment given against her wishes. In medicine, one could argue that many decisions taken (or indeed consent given) are done so under duress.
Often a woman is asked for consent for the student to participate in her care, in the student’s presence; this may make it more difficult for the woman to decline. This difficulty may be exacerbated by the arguably coercive nature of questioning for example: ‘I have a student with me today; you don’t mind if they take part in your care do you?’ Goffman (1959), discussing the way in which individuals present themselves in order to achieve what they want, supports this view. In this instance, mentors want women to allow students’ involvement.

Suikkala et al (2008) identified that some patients didn’t decline the involvement of student participation for fear of the repercussions. They feared that their care may be compromised by doing so (Suikkala et al 2008). As midwives, we often overlook or play down the influential and often powerful position we can have over women, which can lead to disempowerment and a poor maternity experience.  

Even women who have considered student involvement and decided to decline sometimes have their wishes ignored. Recently, a student related an all too common experience where she was sent to admit a woman to the ward. She introduced herself and undertook the admission procedure. Following this, the woman’s birth plan was discussed. It then became apparent that the woman would rather not receive care from a student. However, having met the student the woman consented to allow the student to continue to provide care. The reasons for her change of heart may well have been that she gained confidence and knowledge in the students role, or conversely may have been due to duress – we will never know.

In Summary

Ensuring autonomy and abiding by the principles of valid consent for women throughout the provision of care, facilitates the woman to make her own choices regarding student involvement. The principle of consent as outlined herein supports the equal balance of the partnership between the women and the health professional. As difficult a concept as it may be, a woman’s right to refuse student participation in her treatment should absolutely be upheld, regardless of her rationale.


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