Informed consent

In surgical practice, respect for autonomy translates into the clinical duty to obtain informed consent before the commencement of treatment. The word ‘informed’ is important here. Because of the extremity of their clinical need, patients might agree to surgery on the basis of no information at all. Agreement of this kind, however, does not constitute a form of consent which is morally or legally acceptable. Unless such patients have some understanding of what they are agreeing to, their choices may have nothing to do with planning their lives and thus do not count as expressions of their autonomy. Worse still, if patients are given no information, their subsequent choices may be based on misunderstanding and lead to plans and further decisions which they would not otherwise have made.

For agreement to count as consent to treatment, patients need to be given appropriate and accurate information about:

  their condition and the reasons why it warrants surgery;

  what type of surgery is proposed and how it might correct their condition;

  what the proposed surgery entails in practice;

  the anticipated prognosis of the proposed surgery;

  the expected side effects of the proposed surgery;

  the unexpected hazards of the proposed surgery;

  any alternative and potentially successful treatments for their condition other than the proposed surgery, along with similar information about these;

  the consequences of no treatment at all.

With such information, patients can link their clinical prospects with the management of other aspects of their life and lives of others for whom they may be morally and/or professionally responsible.

Good professional practice dictates that obtaining informed consent should occur in circumstances which are designed to maximise the chances of patients understanding what is said about their condition and proposed treatment, as well as giving them an opportunity to ask questions and express anxieties. Where possible:

  a quiet venue for discussion should be found;

  written material in the patient’s preferred language should be provided to supplement verbal communication;

  patients should be given time and help to evaluate their own understanding and to come to their own decision;

  the person obtaining the consent should ideally be the surgeon who will carry out the treatment. It should not be

   as is sometimes the case — a junior member of staff who has never conducted such a procedure and thus may not have enough understanding to counsel the patient properly.

Surgeons should always attempt to approximate these con­ditions, even when they might not be completely achievable.

Good communication skills go hand in hand with properly obtaining informed consent for surgery. It is not good enough just to go through the motions of providing patients with information required for considered choice. Attention must be paid to:

  whether or not the patient has understood what has been stated;

  not using overly technical language in descriptions and explanations;

  the provision of translators for patients for whom English is not their first language;

  asking patients if they have further questions.

When there is any doubt about their understanding, surgeons should ask patients questions about what has supposedly been communicated to see if they can explain the information in question for themselves.

Surgeons have a legal, as well as moral, obligation to obtain consent for treatment based on appropriate levels of information. Failure to do so could result in one of two civil proceedings, assuming the absence of criminal intent. First, in law, intentionally to touch another person without their consent is a battery, remembering that we are usually touched by strangers as a consequence of accidental contact. Surgeons have a legal obligation to give the conscious and competent patient sufficient information ‘in broad terms’ about the sur­gical treatment being proposed and why. If the patient agrees to proceed, no other treatment should ordinarily be administered without further explicit consent.

Negligence is the second legal action which might be brought against a surgeon for not obtaining appropriate consent to treatment. Patients may have been given enough information about what is surgically proposed to agree to be touched in the ways suggested. However, surgeons may still be in breach of their professional duty if they do not provide sufficient information about the risks which patients will encounter through such treatment. While standards of how much information should be provided about risks vary between nations, as a matter of good practice, surgeons should inform patients of the hazards that in their view any reasonable person in the position of the patient would wish to know. In practice, this is probably best decided through surgeons asking themselves what they or a close relative or friend should be entitled to know in similar circumstances. Only through supporting this standard of disclosure of infor­mation linked to the requirements of a reasonable person can surgeons help to ensure that they, their relatives and friends will be treated with respect and dignity.

Finally, surgeons now understand that when they obtain consent to proceed with treatment then patients are expected to sign a consent form of some kind. The detail of such forms can differ but they often contain very little of the information supposedly communicated to patients, who signed it. Partly for this reason, the process of formally obtaining consent can become overly focused on obtaining the signature of patients rather than ensuring that appropriate types and amounts of information have been provided, and that they have been understood.

Both professionally and legally, it is important for surgeons to understand that a signed consent form is not proof that valid consent has been properly obtained. It is simply a piece of evidence that consent may have been attempted. Even when they have provided their signature, patients can and do deny that appropriate information has been communicated or that the communication was effective. Surgeons are there­fore well advised to make brief notes of what they have said to patients about their proposed treatments, especially information about significant risks. These notes should be placed in the patient’s clinical record.