Understanding the legal considerations of consent in nursing practice
Intended for healthcare professionals
Evidence and practice    

Understanding the legal considerations of consent in nursing practice

Iwan Dowie Head of post registration, University of South Wales, Pontypridd, Wales

Why you should read this article:
  • To refresh your knowledge of the definition and types of consent

  • To be aware of the elements required to ensure that a patient’s consent is valid

  • To understand the considerations that are necessary when a patient does not have the mental capacity to consent to treatment

Consent to treatment is a common, albeit complex, aspect of nursing practice. Over the past few years, laws have been strengthened to provide increased recognition of patient autonomy. This has meant that there is a greater onus placed on nurses to understand how consent is obtained from patients, the elements required to ensure any consent is valid, and how to proceed when it has been determined that a patient does not have the mental capacity to consent to treatment. This article explores some of the legal considerations that nurses should keep in mind when seeking consent from a patient.

Nursing Standard. doi: 10.7748/ns.2021.e11828

Peer review

This article has been subject to external double-blind peer review and checked for plagiarism using automated software

@IwanDowie

Correspondence

iwan.dowie@southwales.ac.uk

Conflict of interest

None declared

Dowie I (2021) Understanding the legal considerations of consent in nursing practice. Nursing Standard. doi: 10.7748/ns.2021.e11828

Published online: 22 November 2021

For the past century, one of the cornerstones of common law in the UK has been that adults considered to be of sound mind are able to consent to or refuse treatment. This concept was demonstrated more than a century ago in the US when, in the case of Schloendorff v Society of New York Hospital [1914], justice Cardozo stated that ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages’. This position was reinforced more recently in the UK courts with the case of Montgomery v Lanarkshire Health Board [2015], where it was ruled that a person who has full capacity – defined by the NHS (2021) as ‘the ability to use and understand information to make a decision, and communicate any decision made’ – has the right to be fully informed of any treatment and is entitled to accept or refuse it.

Consent is an important component in respecting the autonomy of patients. It also acts to establish an agreement between a patient and a healthcare professional that the treatment and care being offered should proceed, as well as allowing the patient the right to refuse.

This article explores some of the legal aspects of consent that nurses need to consider when caring for adult patients. It also discusses some of the issues regarding consent for those aged under 18 years, and explains the considerations that are necessary when a patient is unable to provide valid consent.

Consent in adults

In healthcare, there are two forms of consent – expressed and implied (Griffiths and Dowie 2019). Expressed consent involves the patient informing the healthcare professional of their decision to consent to treatment, whereas implied consent occurs when a patient’s behaviour indicates an agreement to treatment. In healthcare, expressed consent in either the written or oral format is most commonly used; however, while the law requires consent, it does not specify which format it should take. Written expressed consent provides evidence that consent has been obtained, but because gaining written consent is not practical in many healthcare procedures, oral consent remains the most widely used method.

Conversely, relying on implied consent is discouraged by professional bodies due to its inherent ambiguity; for example, The Code: Professional Standards of Practice and Behaviour for Nurses, Midwives and Nursing Associates (Nursing and Midwifery Council (NMC) 2018) states that the nurse must ‘make sure that you get properly informed consent and document it before carrying out any action’, thereby discouraging the use of implied consent.

For implied consent to be legally accepted, a patient’s behaviour must be so obvious that it can be regarded as clearly representing agreement to receive treatment from a healthcare professional. The obvious nature of this behaviour will also act as a defence for the healthcare professional if the provision of treatment is later disputed. For example, in the historic case of O’Brien v Cunard S.S. Co. [1891], Mary O’Brien was a passenger on a ship bound for Boston, US, who queued in line to be administered a vaccination, even rolling up her sleeve to receive it. When she later developed complications resulting from the vaccine, she attempted to sue the ship’s owners for assault and for administrating a vaccination without consent. However, her claim was not upheld because it was clear from her behaviour that she had implicitly agreed to the vaccination.

For significant invasive procedures such as surgery, expressed written consent is the preferable option. For example, the patient’s signature on a surgical consent form provides evidence that they have consented to the treatment. However, because the law is not prescriptive regarding the type of consent required, nurses need to use their judgement as to which interventions warrant written or oral consent. For example, while a surgical operation may require written consent, administrating an injection would generally require oral consent only. This is because the more serious the consequences of a procedure, the greater the risk of litigation; therefore, written consent constitutes a more substantive form of evidence than oral consent. As a note of caution, the validity of written consent can still be challenged; for example, this could occur if there was evidence that a consent form had been signed using coercion, such as a nurse forcing their treatment preferences on a patient, or the patient not being fully informed about an operation by a surgeon.

The same principles of coercion can apply to a patient who refuses treatment. In the case of Re T [1992], a mother so significantly influenced her daughter’s decision to refuse a blood transfusion – despite the daughter being aged over 18 years – that the daughter’s decision to refuse the treatment was ruled invalid because of the mother’s coercion, and the blood transfusion was administered. In line with this judgment, consent has to be freely given by the patient for it to be valid.

Nurses should keep in mind that while they have a professional duty of care and a legal duty to explain the benefits and risks of any treatment to patients (Dowie 2017), it is ultimately the patient’s decision to accept or refuse treatment. Importantly, it does not matter if the nurse disagrees with the patient’s decision (Griffith and Tengnah 2020). The patient’s right to make what could be seen as an ‘unwise’ decision has been confirmed in England and Wales via the passing of the Mental Capacity Act 2005. The act enables patients to make what others may consider to be unwise decisions, even if these decisions ultimately lead to suboptimal health outcomes.

Key points

  • Consent acts to establish an agreement between the patient and the healthcare professional that the treatment being offered should proceed, as well as allowing the patient the right to refuse treatment

  • While nurses have a professional duty of care and a legal duty to explain the benefits and risks of any treatment to patients, it is ultimately the patient’s decision to accept or refuse treatment

  • It is a legal requirement for any nurse or other healthcare professional seeking to gain consent from a patient to explain all the material risks of the treatment so that the patient is fully informed

  • Where it has been determined that a patient does not have the mental capacity to consent to treatment, it is essential to act in their best interests

Explaining risk

There is also a legal requirement for any nurse or other healthcare professional seeking to gain consent from a patient to explain all the material risks of the treatment so that the patient is fully informed of the options available to them. As stated by the Supreme Court of the UK in the Montgomery v Lanarkshire Health Board [2015] case, there is ‘a duty to take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments’. Failure to fully explain to the patient the risks and alternatives to treatment could render any subsequent consent invalid. The nurse also needs to provide sufficient time for the discussion of treatment options with the patient, and to explain the risks and benefits of the proposed treatment so that the patient can make a fully informed decision.

Box 1 details a case scenario where a nurse was required to seek valid consent from a patient.

Box 1.

Case scenario where a nurse was required to seek valid consent from a patient

Scenario

A staff nurse is administering medicines to his allocated patients. He approaches one patient, James, and asks: ‘I have your injection here, is it okay if I administer it to you?’ James replies, ‘Yes.’ The nurse then goes ahead and administers the injection.

Did the nurse obtain valid consent from the patient?

Response

This scenario demonstrates an inappropriate approach to gaining consent. The nurse should have informed James what medicine was in the injection, the reason for the injection and any potential side effects of the injection. This would have enabled the patient to make a fully informed decision to either accept or refuse the injection

Adults with full capacity can still have their refusal to consent to treatment overruled by the courts or by healthcare professionals, if there is a valid reason for doing so. Examples include where a patient with full capacity requires treatment or detention via the Mental Health Act 1983 (amended 2007) (England or Wales) or the Mental Health (Scotland) Act 2015 for their own safety or the safety of others; or if there were a public health concern that would require a person to be treated or take a course of action contrary to their wishes. This was demonstrated in England and Wales by the Public Health (Control of Disease) Act 1984, whereby a patient could be made to take medicines for infectious conditions such as tuberculosis, and more recently in the UK-wide Coronavirus Act 2020, which legally obligated people who were symptomatic of coronavirus disease 2019 (COVID-19) to self-isolate for a prescribed length of time. Such legislation is designed to contribute to the protection of society and public health (Sheldon 2021), even though it might be regarded as proscriptive and against people’s individual rights and freedoms (Shaw 2021).

Ambiguous consent

There are occasions when a patient’s ability to provide consent is ambiguous, for example if they present with intermittent confusion, or if they present to an emergency department in an inebriated state but requiring urgent treatment. In such cases where the patient’s ability to provide consent is temporarily impaired, it is important that the nurse does not assume loss of capacity (Jackson 2016).

In addition, the nurse should never assume that a person’s physical or mental health condition precludes them from providing consent. The case of Re C [1994] involved a patient diagnosed with schizophrenia who refused a lifesaving operation to have his right foot amputated due to gangrene. The court held that because he was able to understand, retain and weigh up the relevant information, he was deemed to have capacity to refuse treatment. His mental health condition did not preclude him from making a decision in relation to his foot.

Consent in patients without capacity

Before determining that a patient does not have capacity, a nurse or other healthcare professional needs to undertake a capacity assessment. For patients over the age of 16 years in England and Wales, section 2 of the Mental Capacity Act 2005 states that ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. Section 3 of the act then outlines the four steps or stages required for a patient to be able to demonstrate capacity. The first three steps reflect those outlined in the case of the patient diagnosed with schizophrenia in Re C [1994], in that the patient is required to be able to understand, retain and weigh up the relevant information. The fourth step states that the patient is also required to communicate their decision to the nurse or healthcare professional seeking their consent. If the patient is unable to meet any one of the four steps, they are deemed not to have the capacity to be able to make the decision to consent to treatment.

Fluctuating capacity

It is important to note that the assessment of capacity is time-specific; in other words, the nurse is assumed to be assessing the patient’s capacity at the time of their presentation. Therefore, it is feasible that a patient may meet only one of the four stages in the morning, yet be able to meet all four stages in the afternoon. This is referred to as fluctuating capacity.

The nurse will need to remember that if a patient is able to meet the four stages necessary to demonstrate capacity at any one time, then at that time the patient is able to consent or refuse treatment, irrespective of the situation a few hours previously. One example of fluctuating capacity might be a patient who is under the influence of alcohol or drugs. They may present to a nurse as unable to meet the four steps outlined in the Mental Capacity Act 2005; however, a few hours later, they might be able to demonstrate full capacity.

Fluctuating capacity is an important factor that nurses need to consider when making treatment decisions in accordance with the Mental Capacity Act 2005: Code of Practice (Department for Constitutional Affairs 2007), which states that ‘if the person’s capacity is likely to improve in the foreseeable future, wait until it has done so – if practicable and appropriate’. Therefore, if a patient appears to have lost capacity, the nurse needs to consider if they are likely to regain capacity within a reasonable time period. If the treatment being proposed is not urgent, then it should be delayed until the person is able to provide consent.

Conversely, there will also be patients who will not be able to regain the ability to meet the four-stage test due to long-term mental capacity issues; for example, patients with advanced dementia or in a long-term coma. Furthermore, the Mental Capacity Act 2005 only applies to patients over the age of 16 years, and some sections of the act restricted to persons aged over 18 years.

In Scotland, similar powers to those provided by the Mental Capacity Act 2005 are invested via the Adults with Incapacity (Scotland) Act 2000. According to this act, in people with long-term capacity issues, a doctor or other recognised healthcare professional must complete a section 47 certificate to provide medical treatment to a patient who can no longer consent. This certificate outlines the nature of the incapacity, the form of medical treatment proposed, the duration of the certificate (usually one year), and details of any consultation with relevant others, for example carers and family members. In Northern Ireland, the Mental Capacity Act (Northern Ireland) 2016 also provides similar powers to that of the Mental Capacity Act 2005 in England and Wales.

Acting in patients’ best interests

Where a patient is unable to meet the four-stage test outlined in the Mental Capacity Act 2005, the nurse can provide treatment and/or care, even if the patient refuses it. This is referred to as acting in the best interests of the patient.

The case of Re F [1990] concerned a woman aged 36 years with learning disabilities who was being considered for sterilisation. The woman had the verbal capacity of a two-year-old child and the general mental capacity of a four-year-old child, and had commenced a sexual relationship with a fellow patient at the mental health hospital where she lived as a voluntary inpatient. Concerns were raised by her mother and the hospital staff that F would not be able to cope with a pregnancy or childbirth, and would be unable to raise and care for a child herself. Due to her capacity issues, F was unable to consent to the procedure. The court decided that it was in her best interests to be sterilised and the procedure went ahead.

In his summing up, the judge Lord Goff stated: ‘It is well established that, as a general rule, the performance of a medical operation upon a person without his or her consent is unlawful, as constituting both the crime of battery and the tort of trespass to the person.’ However, Lord Goff also discussed the question of when it was acceptable to justify medical treatment where there was no valid consent, stating that ‘in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it’. In other words, there are occasions when, due to the mental incapacity of the patient, healthcare professionals may decide that it is in the patient’s best interests to undertake a procedure or intervention to maintain their health and well-being.

The concept of best interests has been firmly established in statute law under section 4 of the Mental Capacity Act 2005. However, acting in a patient’s best interests involves several important safeguards for the patient that nurses must be mindful of:

  • The previous wishes and beliefs of the patient have to be considered. For example, if a patient had expressed particular religious beliefs before they lost capacity, those beliefs should not be ignored.

  • The patient’s family and/or carers have the right to be consulted by healthcare staff so that any previous wishes and/or beliefs held by the patient can be discussed.

  • The treatment intervention selected must be the least restrictive option. However, what constitutes the least restrictive option can be open to interpretation, so it is essential to consult with the patient’s family and/or carers, as well as other members of the multidisciplinary team. For example, in the case of a patient who was confused and repeatedly attempting to get up from their chair to wander, the nurse might place another chair in front of the patient as an obstacle. However, a less restrictive option would be to ask the patient if they want to go to the toilet or for a short walk.

The consideration of patients’ wishes and best interests was demonstrated in the case of St Georges Healthcare NHS Trust v S [1998], in which a mentally competent woman refused a caesarean section delivery, preferring a natural birth. The doctors at the trust decided to admit her under section 2(2a) of the Mental Health Act 1983 (amended 2007) because her pre-eclampsia would have endangered the baby if she had undergone a natural birth. However, the Court of Appeal judged that the use of the Mental Health Act 1983 (amended 2007) to overrule a patient’s refusal of treatment was wrong, and that the woman’s wishes could not be ignored by a court unless she lacked capacity to consent.

While the doctors in this case may have considered that they were acting in the best interests of the patient and the unborn child, the patient retained the right to make what might have been regarded by others as an unwise decision. As Lord Justice Judge in the Court of Appeal stated, ‘while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment… an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights.’

Advance decisions

Patients with capacity may make a decision regarding their future health and any potential treatment in what is referred to as an advance decision. An advance decision can only be applied in the event that the patient no longer has the capacity to make a valid decision for themselves, a condition that is set out in section 24(1) of the Mental Capacity Act 2005. Advance decisions are also required to be condition-specific; for example, an advance decision in the case of a person diagnosed with dementia might state: ‘In the event that I develop advanced dementia, I do not wish to undergo cardiopulmonary resuscitation.’ Furthermore, any refusal of life-saving treatment has to be made in writing, signed and witnessed, preferably by someone outside of the patient’s family, for example a solicitor or a GP.

Advance decisions must be stored in a place that is accessible to healthcare professionals, for example the patient’s medical notes. For an advance decision to be valid, the patient must be aged over 18 years, their intentions must be clear, and there should be no evidence that they have changed their minds since making the advance decision. Any ambiguity in relation to the advance decision – for example, a nurse or a family member may contest its validity based on a lack of clarity regarding the patient’s intention – would mean that treatment would be allowed to continue in accordance with the patient’s best interests while a court decision is pending (Herring 2018).

Advance decisions for non-life-saving treatment can be made verbally and are usually witnessed by a family member or close friend of the patient. One example of an advance decision for non-life-saving treatment might be a patient stating that they do not want to be fed certain types of food, such as meat, at the end of life. However, it is advisable to put any advance decision in writing because this provides more rigorous evidence than only stating it verbally.

Advance decisions generally focus on the refusal of treatment decisions. While a patient can state a preference for a particular treatment in an advance decision – for example, palliative care over chemotherapy – this is not legally binding for healthcare professionals. People who are under the care of the Mental Health Act 1983 (amended 2007) cannot generally make an advance decision in relation to their mental health treatment, except in the case of electroconvulsive therapy.

While an advance decision cannot be used to refuse nutrition or basic care, patients can refuse artificial nutrition and hydration because these are deemed to be a form of treatment (Hurlow 2019). Any healthcare professional who acts against a valid advance decision could be taken to court for being in breach of the law.

Lasting power of attorney

A patient can appoint someone to be their lasting power of attorney. This person will be able to make decisions regarding the patient’s medical and nursing care once they have lost capacity to make decisions for themselves, including the refusal of life-saving treatment. Nurses and other healthcare professionals have to abide by the decisions of any person granted lasting power of attorney, unless there are reasonable grounds to suggest that they are acting against the wishes of the patient, in which case a judgment from the Court of Protection can be sought (Griffiths and Dowie 2019). The Court of Protection was established under the Mental Capacity Act 2005 and has jurisdiction over the property, financial affairs and personal welfare of those who lack mental capacity to make decisions for themselves.

Consent in children

Consent can become increasingly complicated in those aged under 18 years. Children aged 16 years and 17 years are able to consent for themselves as if they were an adult, and this has been established in law via section 8 of the UK’s Family Law Reform Act 1969. However, this right to consent does not include an automatic right to refusal of treatment. Case law (Re W [1992]) has established that when a person aged 16 years or 17 years refuses treatment, a parent or guardian retains the option to overrule their refusal. However, this is a complex area and, in most cases, the courts would be required to decide whether the refusal should be upheld.

The case of Re W [1992] established the right of parents or guardians to consent on behalf of a person aged under 18 years. In this case, a girl aged 16 years who had been diagnosed with anorexia refused to be treated in a specialised hospital. The Court of Appeal held that section 8 of the Family Law Reform Act 1969 did not prevent the rights of the parents to consent on behalf of a child aged under 18 years if the child was refusing treatment that was deemed to be in their best interests.

In cases where a parent provides consent for treatment on behalf of a child that is perceived by another person(s) as being against the child’s best interests, the court can intervene to prevent or stop treatment. For example, in the case of Re D [1976], the mother and paediatrician had sought the sterilisation of D, a girl aged 11 years who had been diagnosed with Sotos syndrome (a genetic condition characterised by excessive growth during the first years of life) and learning disabilities. However, professional testimony stated that by the time D reached 18 years, she would be able to understand the implications of a hysterectomy and be able to give informed consent; therefore, the court found that the sterilisation was not medically necessary and refused to allow it.

When managing consent in children, nurses should be mindful that in the case of parents who were unmarried at the time of the child’s birth, parental responsibility may rest with the mother alone if the father has not been named on the birth certificate (McCandless 2017).

Children under the age of 16 years need to demonstrate what is known as ‘Gillick competence’ before they can provide valid consent (Hendrick 2010). The principle of Gillick competence arose from the case of Victoria Gillick, who attempted to prevent GPs and healthcare professionals providing contraceptive and sexual health advice to children under the age of 16 years without first obtaining permission from the parent or guardian (Gillick v West Norfolk & Wisbech Area Health Authority [1986]). It was ruled that it was in the best interests of a child to continue receiving advice and appropriate treatment without parental consent, as long as the child demonstrated sufficient maturity to understand the nature of the treatment and its associated risks. However, the younger the child, the less likely it is that they would be able to demonstrate sufficient maturity. Box 2 demonstrates a case scenario involving a 15-year-old boy who is seeking contraception.

Box 2.

Case scenario involving a 15-year-old boy who is seeking contraception

Scenario

Tom, aged 15 years, is seeking contraception from a sexual health nurse. During his conversation with the nurse, Tom is seen making faces at his friends in the waiting room and laughing. Is Tom demonstrating sufficient maturity as expected by the law?

Response

In this case, Tom is not demonstrating sufficient maturity as determined by Gillick competence, and the nurse would be within their rights not to provide him with contraception

As in the case of those aged 16 years and 17 years, children aged under 16 years have no legal automatic right to refuse treatment. However, healthcare professionals have an obligation under the United Nations (UN) (1989) Convention on the Rights of the Child to allow children to freely express their opinions, and for those opinions to be heard. The Convention on the Rights of the Child was ratified into UK law in 1991.

Conclusion

Patients’ consent to any treatment or care is essential to maintain their autonomy, and nurses need to respect a patient’s right to make decisions, even if these may be considered unwise. For consent to be valid, the nurse has a significant role in ensuring that the patient receives information on the material risks associated with any treatment, and that the patient has been afforded sufficient time to make a fully informed decision.

If a patient is unable to consent to treatment due to a loss of mental capacity, the nurse needs to make sure that the patient and their family members and/or carers are included in the decision-making process, and that any treatment or care is in the patient’s best interests, in accordance with their wishes and beliefs, and is the least restrictive option.

References

  1. Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. http://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/921428/Mental-capacity-act-code-of-practice.pdf (Last accessed: 9 November 2021.)
  2. Dowie I (2017) Legal, ethical and professional aspects of duty of care for nurses. Nursing Standard. 32, 16-19, 47-52. doi: 10.7748/ns.2017.e10959
  3. Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
  4. Griffith R, Tengnah C (2020) Law and Professional Issues in Nursing. Fifth edition. SAGE Publications, London.
  5. Griffiths R, Dowie I (2019) Dimond’s Legal Aspects of Nursing: A Definitive Guide to Law for Nurses. Eighth edition. Pearson Education, Harlow.
  6. Hendrick J (2010) Law and Ethics in Children’s Nursing. John Wiley and Sons, Chichester.
  7. Herring J (2018) Medical Law and Ethics. Seventh edition. Oxford University Press, Oxford.
  8. Hurlow A (2019) Nutrition and hydration in palliative care. British Journal of Hospital Medicine. 80, 2, 78-85. doi: 10.12968/hmed.2019.80.2.78
  9. Jackson E (2016) Medical Law: Text, Cases and Materials. Fourth edition. Oxford University Press, Oxford.
  10. McCandless J (2017) Reforming birth registration law in England and Wales? Reproductive Biomedicine & Society Online. 4, 52-58. doi: 10.1016/j.rbms.2017.07.001
  11. Montgomery v Lanarkshire Health Board [2015] UKSC 11
  12. NHS (2021) Assessing Capacity: Consent to Treatment. http://www.nhs.uk/conditions/consent-to-treatment/capacity (Last accessed: 9 November 2021.)
  13. Nursing and Midwifery Council (2018) The Code: Professional Standards of Practice and Behaviour for Nurses, Midwives and Nursing Associates. NMC, London.
  14. O’Brien v Cunard S.S. Co. [1891] 154 Mass. 272, 28 N.E. 266
  15. Re C (adult: refusal of medical treatment) [1994] 1 All ER 819
  16. Re D (a minor) (wardship: sterilisation) [1976] Fam 185
  17. Re F (mental patient sterilisation) [1990] 2 AC 1
  18. Re T (adult: refusal of medical treatment) [1992] 4 All ER 649
  19. Re W (a minor) (medical treatment: court’s jurisdiction) [1992] 4 All ER 627
  20. Schloendorff v Society of New York Hospital [1914] 105 N.E. 92
  21. Shaw DM (2021) The cost of coronavirus obligations: respecting the letter and spirit of lockdown regulations. Cambridge Quarterly of Healthcare Ethics. 30, 2, 255-261. doi: 10.1017/S096318012000081X
  22. Sheldon D (2021) Policing the pandemic: maintaining compliance and legitimacy during Covid-19. King’s Law Journal. 32, 1, 14-25. doi: 10.1080/09615768.2021.1889809
  23. St Georges Healthcare NHS Trust v S [1998] 3 All ER 673
  24. United Nations ( 1989) Convention on the Rights of the Child. http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (Last accessed: 9 November 2021.)

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