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.