Practical difficulties
Thus far, we have examined the moral and legal
reasons why the duty of surgeons to respect the autonomy of patients translates
into the specific responsibility to obtained informed consent to treatment.
For consent to be valid, patients must:
•
be competent to give it — to be able to understand, remember,
deliberate about and believe whatever information is provided to them about
treatment choices;
•
not be coerced into decisions which reflect the preferences of others
rather than themselves;
•
be given sufficient information for these choices to be based on an
accurate understanding of reasons for and against proceeding with specific
treatments.
Surgeons will face four key practical
difficulties in aspiring to these goals.
First,
surgical care will grind to a halt if it is always necessary to obtain
explicit informed consent every time a patient is touched in the context of
their care. Fortunately, such consent is unnecessary because patients will
have already given their implied consent to whatever bodily contact is required
in order to fulfill the therapeutic goals when they gave their explicit consent
to treatment. Yet, the fact that this is so underlines the importance of
obtaining proper and explicit consent in the first place, along with taking care
to note any sign of the patient withdrawing that consent or placing restrictions
on it — say, through verbally refusing or physically resisting specific
aspects of care.
Second,
some patients will not be able to give consent because of temporary
unconsciousness. This might be a byproduct of their illness or injury, or it
could simply be the result of the administration of general anaesthetic. The
moral and legal rules which govern such situations are clear, If patients are at
risk of death or of serious and permanent disability if surgery is not
immediately performed then the situation is one of medical necessity and
intervention can occur without consent. However, surgery not entailing such
risks should be postponed until patients regain consciousness and are able to
give informed consent for themselves. Surgeons must take care to respect this
distinction between procedures which are therapeutically necessary and those
which are done merely out of convenience, even when in the course of one
operation they discover problems unknown to the patient which they believe to
require further surgical work. For example, a surgeon was successfully sued for
battery by a female patient for performing a hysterectomy thought to be in her
best interests when all that she had explicitly consented to was a dilatation
and curettage.
Third,
informed consent may be made impossible by incompetence of other kinds. In the
case of children, parents or someone with parental responsibility are ordinarily
required to give explicit written consent on their behalf. This said, surgeons
should:
•
take care to explain to children what is being surgically proposed and
why;
•
always consult with children about their response;
•
where possible, take their views into account and note that even young
children can be competent to consent to treatment provided that they too can
understand, remember, deliberate about and believe information relevant to their
clinical condition.
When such competence is present, children
under English law can provide their own consent to surgical care, although they
cannot unconditionally refuse it until they are 18 years old. With the exception
of the latter, these provisions illustrate the importance of respecting as much
autonomy as is present among child patients and remembering that, for the
purposes of consent to medical treatment, they may be just as autonomous as
adults.
Where
competence is severely compromised by psychiatric illness or mental handicap,
other moral and legal provisions hold. If patients lack the autonomy to choose
how to protect themselves then others charged with protecting them must assume
the responsibility. Yet, care must be taken not to abuse this duty. For example,
adult voluntary psychiatric patients have the same rights to consent to and
refuse treatment as any other competent adult. Even when they have been
legally detained for compulsory psychiatric care, it does not follow that such
patients are unable to provide consent for surgical care. Their competence
should be assumed and consent should be sought. If it is established with the
help of their caters that such patients are also incompetent to provide
consent for surgery and that they are at risk of death or serious and permanent
disability then therapy can proceed. However, if treatment can be postponed then
this should be done until, as result of their psychiatric care, patients become
able either to consent to or refuse it. As with children, respect should always
be shown for as much autonomy as is present.
If,
for whatever clinical reason, adult patients are permanently incompetent to
consent to surgery, therapy can again proceed if it is necessary to save life or
to prevent serious and permanent injury. In the UK, the final decision to
proceed with surgery which is elective and can be postponed rests ultimately
with the surgeon and other doctors responsible for the patient’s care. It does
not depend on the views of the relatives of the patient. The moral justification
for this is that the patient’s professional caters are more likely to act consistently
in their best interests than their relatives.
Thus,
it is always a futile exercise in the UK to ask the relatives of incompetent
patients to sign consent forms for surgery on adults who cannot do so for
themselves. Indeed, to do so can be a great disservice to relatives who may feel
an unjustified sense of responsibility if the surgery fails. This said,
relatives should be treated with politeness and consulted about issues which
pertain to determining the best interest of patients. In other legal
jurisdictions, relatives can be given powers of guardianship to provide consent
for surgical treatment, although even here surgeons should ensure that such
powers are vested in the specific person asked to provide it.