Medicine and the Law – Part 4: Informed Consent




Health and Healthcare CategoryIn my previous posts about Medicine and the Law we talked about the elements necessary for a patient-physician relationship — contract and consent as well as medical malpractice. We then went on to discuss causation and the different types. Continuing on in this series let’s talk about informed consent. Failure to obtain informed consent is a leading cause of malpractice claim.

Informed consent essentially is documented written or verbal permission from a patient to receive treatment or undergo a procedure. Typically it involves five elements:

  • A description of the illness
  • A description of the treatment
  • Risks of the treatment
  • Alternatives to the treatment
  • Risks of not having any treatment

AttorneysPhysicians can get into trouble in many scenarios regarding informed consent. Most states require that informed consent be verified by a witnessing party. Thus an informed consent form typically has three signatures — the patient, the doctor, and the witness. If a patient is unable to sign, verbal consent can be obtained or his/her healthcare power of attorney may sign. If there is no family or healthcare power of attorney and the procedure or treatment is emergent then a two-physician consent may be done. This basically is permission granted by the state to care for a patient in an emergent situation according to the standard of care.

When a patient is demented or cannot comprehend any of the requirements for informed consent, then things can get a little dicey. Often times the treating physician will obtain a psychiatric consultation to evaluate the patient’s decision making capacity. If that consultant still cannot determine the patient’s decision making capacity, he may obtain an additional consultation.

As you can imagine, getting permission from a patient who may or may not completely know what is going on is a recipe for disaster. As a treating physician this is an area where you may get in trouble if you are aggressive and treat or if you are conservative and do not treat. Ultimately it is the outcome that gets you in trouble given that most patients who sue are those who have a bad outcome.

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  • What is important for informed consent is a dialogue that is built up between patient (and/or guardian) and doctor. Simply presenting the information about the risks and benefits is not enough, the doctor must ensure that the patient actualy understands what it means and isn’t entering into the agreement under coercive or manipulative pressure. This puts a burden of trust onto the doctor, because the doctor obviously will know more about the procedure than the patient (most of the time), to tailor his or her description and discussion of the procedure for the understanding level of the patient, to discuss and explain the risks and benefits to the best of his or her ability, and to answer questions without bias or coercive pressure (one of the problems with pharmaceutical companies buttering up doctors can manifest here).

    Informed consent isn’t just about getting the form signed. It’s about a transaction of information between a doctor and a patient in order to establish the understanding of the process of a procedure or medical treatment, whether it is the appropriate procedure or treatment, and then to allow the patient to waive their expectations of normal behaviour in order for a doctor to provide a procedure or treatment (such as invasive or painful treatments).

    The part that “gets doctors into trouble” is not establishing a good communicative dialogue with the patient. Communication is *essential* to informed consent.

  • Bob

    I completely agree with Catherine.

    There’s a tendency to reduce informed consent to a set of forms with boxes to tick and dotted lines to sign along. But that’s not informed consent. I’m sure it’s necessary for medicolegal purposes to complete a relevant set of documents and forms, but, really, what’s much more important is that the patient and the practitioner have formed a trusting relationship.

    If the doctor really cares about the patient, he, or she, will do their best to help the patient to make a choice. Not just any choice, and not necessarily the choice the doctors would make for themselves, but the choice only the patient can make in the full knowledge of the contexts and values of their life.
    The doctor’s job involves being well informed about diseases and treatments and making that knowledge available to the patient.

    Informed consent is not persuading a patient to do what the doctor thinks is best. It’s empowering and enabling a patient to make their choice.

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JC, MD

Dr. JC is a medical doctor who has a passion for health promotion and education.
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