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
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.