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Casual Consent To Treatment: A Neglected Issue in Our Health Care System
Casual Consent To Treatment: A Neglected Issue in Our Health Care System
of simple consent to the more sophisticated notion of informed consent, consent still
continues to be a largely neglected component of our health care system. There is lack
of recognition of the significance of consent to treatment and hence the consent process is
taken as a casual formality both by our doctors as well as patients. Most of the time the
doctors are forced by local cultural factors and social customs to compromise on the
principles of consent taking. This compels them to take added responsibility and a great
professional risk. There is a dire need to rectify this trend because an informed consent not
only ensures the patient’s autonomy, self-determination and informed decision-making
but is also a reaffirmation of the doctor’s ethical and legal responsibilities towards his Address of Correspondence:
Dr. Muhammad Saaiq
patient.
Medical Officer,
This article highlights the various conceptual and methodological processes involved in the Department of Surgery, PIMS,
Islamabad, Pakistan.
consent with identification of the deficiency areas in our own system. E-mail
muhammadsaaiq5@gmail.com
KEY WORDS : Consent to treatment, Informed consent.
cold, sore throat etc. In such cases the implied consent The generally agreed elements to be disclosed for
would be sufficient for routine clinical examination, eliciting informed consent from a legally competent
however more complex examination such as that of patient include the diagnosis, the patient’s prognosis if
private parts or female breast would require an explicit untreated, alternative treatment options , the success
consent. Expressed consent refers to the one which is rate of each option, the risks and benefits of the
expressed either verbally or in writing. The expression anticipated procedure and the patient’s right to exercise
should be done in the presence of a third party veto power over a doctor’s decision. 16,18
unrelated to the patient so that this evidence remains
unbiased in the event of any allegation against the
doctor . 4-6 How much risk-information to deliver
In view of the ever-increasing new diagnostic and in the consent process?
therapeutic interventions and sophisticated research
protocols, the traditional concept of consent has much Over the last two decades particularly there has been an
changed. Now it is an era of informed consent which explosive expansion of the understanding of how people
adequately satisfies both ethical as well as legal aspects perceive and code risks and then use this information in
of the standard medical practice of the contemporary decision making. 19-21
era. 7-9 There is growing evidence that the patients often
employ simplifying heuristics in judgment and decision
making. These heuristics may lead to bias in how
What are the essentials of an people interpret information. However much of our
informed consent? understanding of risk perception is based on laboratory
studies and it is less clear whether risk perception in the
Historically there has been a move from simple to real world exhibits the same pattern and biases. 19
informed consent and the basic philosophy behind this Legally, informed consent for therapy is a risk-
drift is to ensure patient’s autonomy and right of self- management tool that functions essentially as a release
determination in making informed decisions about his of liability. If the patient is informed of all the expected or
health. 10,11 potential side-effects or toxicities of a treatment, he
Meaningful and fair consent essentially demands that cannot sue the doctor or hospital because those side
the patient be given sufficient and understandable effects occur. The moral doctrine of informed consent is
information to make a valid choice of his treatment. The derived from a respect for the patient's autonomy as
consent form is not equivalent to consent.12 The well as the patient's vulnerability. The physician's goal is
important attributes of informed consent are information not to minimize liability but to help the patient make the
13
, trust 14 and lack of coercion 15 . The consent best decision. These two goals are not necessarily
process often starts at the time of admission with implicit incompatible but they often lead to different attitudes
rules of communication and participation being towards informed consent and different decisions about
conveyed to the patient. The signing of consent form what information needs to be shared with patients. If the
just prior to surgery while on the ward tends to be a re- goal is risk-management then informed consent forms
affirmation of the same. should be encyclopaedic providing the "whole truth" to
Modern law emphasizes patient’s consent to treatment the patient. This would however not meet the moral
not only through liability for unauthorized touching ( i.e. goals of shared decision-making because few patients
criminal assault and/ or civil battery) but also through could make sense of such data. This may elicit even
liability for negligence. 16 New dimensions to the counterintuitive and probably counter-productive
traditional informed consent are being sought and there response. 9
is reconsideration of even legislative provisions Even in the developed countries patients don’t realize
regarding public education programmes towards the purpose and significance of information and consent
consent related specific issues such as disclosure , form. In a country like the United States, less than 31%
advance directives, substitute decision, emerging of the people have any college education. In this context
treatments and advocacy. 17 expressing and understanding risk is a problem equally
faced by doctors and patients across the world. 22-24
Consent taking in developing harm on the other hand. Competence refers to the state
in which a patient’s decision making capacities are
countries like ours! sufficiently intact for their decisions to be honoured. 25
This capacity to make decisions is required for anyone
We in our set up are faced with yet more complicated to give a valid informed consent however informed
issues. The stingy botherations are: What kind of consent requires more than this capacity, for example,
information to deliver ? How much risk information to trust and lack of coercion. More importantly there must
communicate? Whom to tell and Whom not to tell? be an understanding of what is being consented to .
When and how to communicate? etc. Since our society 14,15,26
is suffering from a social divide, we in our clinical Generally the current recommendation is that in non-
practice encounter two extreme varieties of people. i.e. emergency situations, individuals who are competent to
the deprived and poor ones and the affluent and give informed consent to treatment should be extended
influential ones . The former strata , owing to their the right to refuse it as well. 27
uneducated and ignorant behaviour prompt a
‘communication block’ on part of the dealing doctor
while the latter group owing to their narcissistic Who are incompetent to consent?
behaviour cause an ‘empathy block’. As a result,
effective communication is impaired at the very outset of Incompetence refers to a status of the individual as
doctor-patient interface. defined by the functional deficits ( due to mental illness,
Not infrequently we encounter problems when we are mental retardation or other mental condition) judged to
about to break bad news to our patients. For instance a be sufficiently great that the person currently can’t meet
lady with breast cancer would be all set for surgery but the demand of a specific decision making situation
the sons would insist on not disclosing any information weighed in light of its potential consequences. 25
to their mother about the diagnosis as well as the plan Patient’s understanding of the information about
for surgery. treatment is the main determinant of his capacity to
In Neurosurgical practice we encounter yet more give informed consent. Incapacity is generally
strange situations. For instance a patient with sciatica considered in terms of understanding and
would seek our advice and when he is advised surgery, communication. 28-30 In England the law emphasizes a
he would go away saying that he has heard of the risk patient’s understanding of the information about the
of paraplegia and life long disability associated with proposed treatment, potential risks and benefits of
spinal surgery. Similarly a patient with acoustic neuroma treatment and the consequences of not taking the
would be ready to undergo surgery but would disappear treatment. 3 Thus any person would be considered
if the risk of facial palsy is communicated to him. These unable to take a decision on mental treatment in
circumstances force us not to tell the patient all the likely question if he is unable to understand or retain the
risks involved in the anticipated procedure, however information relevant to the decision, unable to make a
who can guarantee the ‘cure without any risk of decision based on the information or unable to
complications’ . Still our patients would search for communicate a decision. 3 Mental disorders associated
someone who can offer cure with no chance of risks lack of insight would incapacitate the patient to consent
whatsoever and at times end up with the so called for treatment .
100% healers. Most of the criteria for competence in current use
emphasize cognitive rather than affective dimension of
capacity to consent. Clinical experience indicates that
Who is competent to consent to affective disorders may impair competence in a
treatment? detectable and identifiable way. In particular patients
with major affective disorders can retain the cognitive
Anyone who can give a legally valid consent must be capacity to understand the risks and benefits of a
competent. There exists a fine balance between medication yet fail to appreciate its benefits. 31
patient’s autonomy and self-determination on one hand
and protection of the incompetent patient from potential
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