Question from a GP: I have had several patients lately who clearly stated that they do not consent to COVID-19 vaccination. Yet, they asked me to be vaccinated because otherwise, they would lose their jobs, houses etc. Am I, potentially, in trouble?
Answer: This was probably, the most uncomfortable question from the client in my 20 years long consulting career. This question was uncomfortable because I immediately knew the answer but hesitated to produce it. Yet, I decided to stick to the Q&A procedure and reply publicly. The Q&A service provides that any GP, nurse, a student of Public Health/ Management or Practice Manager can ask me a question via LinkedIn direct message. This is a free service. There is a condition – I will publish the answer for all to see. The person asking the question will not be identified (naturally).
So, back to why the question was so uncomfortable. I knew the answer without even looking for references. If you read my other posts, you can see that I try to reference my writing well.
As a rule, no treatment or procedure can be administered without full informed consent by the patient. (1)
At common law, all competent adults can consent to and refuse medical treatment. If consent is not established, there may be legal consequences for health professionals. Under the law of trespass, patients have a right not to be subjected to an invasive procedure without consent or other lawful justification, such as an emergency or necessity. At the international level, the CRPD expresses this in terms of a ‘right to respect for his or her physical and mental integrity on an equal basis with others’. (2)
Is it valid consent if given under duress? Typically, the considerations for consent to a medical procedure gravitate around potential risks and side effects. In other words, the discussion is, essentially, clinical. However, GPs often encounter situations when consent for a medical procedure is given to some prevailing circumstances that are not clinical. One of them may be financial stress. For example, the patient may state financial difficulty in order to obtain a referral for termination of pregnancy. This consent is given under duress of non-clinical circumstances. Is mandatory COVID-19 vaccination any similar? No, in the case of mandatory COVID-19 vaccination, the duress comes from the external party – the Government of Victoria.
Is there any waver to any responsibility by a GP for administering the treatment without consent? No, there is none. I wrote about my concerns about the ‘Indemnity scheme‘ before.
Is the ‘state emergency’ going to provide any waver to the informed consent? I could not find any reference to a waiver for informed consent to medical treatment in any of the Public orders in Victoria.
Any new approach to informed consent would need to be reflected in guidance such as the Australian Charter of Rights in Healthcare, the National Safety and Quality Health Service Standards, the National Framework on Advance Care Directives, publications on communication with patients (3) and the national codes of conduct of health practitioners. (4)
Conclusion.
In my view, patients who state that they agree to the COVID-19 vaccination under duress do not give valid consent. Yes, in the situation above, GPs are, potentially, subjects for a complaint related to the administering treatment without consent.
References:
- Health Complains Commissioner, CODE OF CONDUCT FOR GENERAL HEALTH SERVICES, https://hcc.vic.gov.au/sites/default/files/2021-04/general_code_of_conduct_-_a3_2.pdf. Last accessed 30.10.2021
- UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) ART 17.
- ‘General Guidelines for Medical Practitioners on Providing Information to Patients’ (National Health and Medical Research Council, 2004); ‘Communicating with Patients: Advice for Medical Practitioners’ (National Health and Medical Research Council, 2004).
- The codes of conduct for the 14 national boards of health practitioners are available at Australian Health Practitioner Regulation Agency, National Boards <http://www.ahpra.gov.au/National-Boards.aspx>.
