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Informed consent
Some practical considerations about informed consent
The law on consent will continue to evolve. However, current interpretation of legal judgements dealing with “informed consent” will allow some suggestions which may be of practical assistance to physicians in their attempt to meet the legal standards:
1. Insofar as may be possible, tell the patient the diagnosis. If there is some uncertainty about the diagnosis mention this uncertainty, the reason for it and what is being considered.
2. The physician should disclose to the patient the nature of the proposed treatment, its gravity, any material risks and any special risks relating to the specific treatment in question. Even if a risk is a mere possibility which ordinarily might not be disclosed, if its occurrence carries serious consequences, as for example paralysis or death, it must be regarded as a material risk requiring disclosure.
3. A physician must answer any specific questions posed by the patient as to the risks involved in the proposed treatment. Always the patient must be given the opportunity to ask questions.
4. The patient should be told about the consequences of leaving the ailment untreated. Although there should be no appearance of coercion by unduly frightening patients who refuse treatment, our courts now recognize there is a positive obligation to inform patients about the potential consequences of their refusal.
5. The patient should be told about available alternative forms of treatment and their risks. There is no obligation to discuss what might be clearly regarded as unconventional therapy but patients should know there are other accepted alternatives and why the recommended therapy has been chosen.
6. Physicians must be alert to a patient's individual concerns about the proposed treatment and deal with them. It must be remembered that any particular patient's special circumstances might require disclosure of potential although uncommon hazards of the treatment when ordinarily these might not be seen as material. Courts have made it clear that the duty of disclosure extends to what the physician knows or should know the particular patient deems relevant to a decision whether or not to undergo treatment.
7. Although any particular patient may waive aside all explanations, may have no questions, and may be prepared to submit to the treatment whatever the risks may be without any explanatory discussion, physicians must exercise cautious discretion in accepting such waivers.
8. When, because of emotional factors, the patient may be unable to cope with pre-treatment explanations, the physician may be justified in withholding or generalizing information which otherwise would be required to be given. This so-called “therapeutic privilege” should be exercised with great discretion and only when there are compelling reasons dictated by clinical circumstances.
9. In obtaining consent for cosmetic surgical procedures or for any type of medical or surgical work which might be regarded as less than entirely necessary to the physical health of the patient, physicians must take particular care in explaining fully the risks and anticipated results. As in experimental research situations, courts may impose on physicians a higher standard of disclosure in such circumstances.
10. Encouragement about optimistic prospects for the results of treatment should not allow for the misinterpretation that results are guaranteed.
11. Where a part or all of the treatment is to be delegated, patients have a right to know about this and who will be involved in their care. Consent explanations should include such information.
12. A note by the physician on the record at the time of consent explanations can later serve as important confirmation that a patient was appropriately informed, particularly if the note refers to any special points which may have been raised in the discussion.
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