Episode Transcript
Hello, my name is Dr. Alberto Calle and I’m an International Medical Graduate applying to Anesthesiology. I am joined by my mentor Dr. Mike Hofkamp. Today I will be discussing different scenarios regarding informed consent in anesthesiology. We will discuss when consent is implied and when it is not, the rules regarding getting informed consent in patients with psychiatric diseases and limited English proficiency as well as the basics of informed consent elements and withdrawal of such consent. At the conclusion of this podcast, the listener should have increased awareness of different common ethical scenarios regarding informed consent in anesthesiology. Let’s get started.
So, let’s start with informed consent. What is informed consent exactly? Informed consent is the process by which a physician delivers all the necessary information to a patient for them to make educated decisions about their health care. It includes a description of the patient’s condition, treatment options, benefits, and alternatives to treatment including the option of treatment refusal. It has three elements: capacity, voluntariness, and appropriate information. Capacity is the basis of informed consent, and it’s the ability to understand the risks, benefits, and alternatives of a medical intervention as explained in the informed consent, and the ability to make a decision. Voluntariness refers to a choice or action that is free from coercion or persuasion and is not influenced by others. Appropriate information means the patient should have truthful, unbiased and updated information to make an informed decision. (Kinnersley, 2013)
Informed consent should include an explanation of the diagnosis, the risks and benefits of the recommended treatment and its alternatives, and the risks of refusing treatment. It is not required to go over all the possible scenarios of complications, only over those that a reasonable person would need to know to make an informed decision. The patient should have the chance to ask questions during informed consent. From a medico-legal perspective, it is of utmost importance to document the informed consent process.
Let’s talk about implied consent. An example of implied consent is when a patient conveys through physical or verbal actions that he or she consents to treatment. For example, if a patient in an emergency room is offered oral oxycodone for pain, seeing the patient taking the drug with a sip of water indicates that the patient has given implied consent for that treatment without additional discussion.(Veatch, 2007)
Presumed consent is often mistaken for implied consent. Presumed consent occurs in emergencies when a patient is unconscious or unable to make a decision. For example, in a disoriented patient who needs urgent airway management due to impending respiratory failure, even if the patient states they don’t want to be intubated, consent can be presumed, because treatment could potentially save their life and due to the circumstances, the patient’s decision-making capacity is not intact. Also, if there is a way to know the patient’s preferences, then presumed consent should try to follow that guidance as is the case of a Jehovah’s witness who has been known to refuse blood products in the past. (Suah & Angelos, 2018)
And just to make it more confusing, informed and presumed consent are different from waived consent. Waived consent can happen when the patient has given informed consent and, upon hearing the initial details, wishes to hear no more. They simply want to proceed with the proposed treatment. In this case, the patient has the right to consent to treatment without having to hear all the details of the procedure. This consent may be accepted based on having given the patient a reasonable “subjective standard”, which is enough information to make a decision. As always, waived consent must also have appropriate documentation. (Veatch, 2007)
In some cases, a patient declines treatment that the physician believes is in the patient’s best interest. Whenever a patient refuses treatment, the first thing to do is always to try to understand the patient’s reason for refusal and addressing the patient’s concerns, if the patient still refuses, we should let the patient decide based on the ethical principle of autonomy. As you may remember, autonomy is the ethical principle that recognizes that all persons have intrinsic and unconditional worth, and therefore should have the power to make rational decisions and moral choices, and they should be allowed to exercise his or her capacity for self-determination. (Varkey, 2020 and Dickens & Cook, 2015)
Most medical decisions should be agreed upon by shared decision-making, where the patient’s preferences and personal values are considered when discussing treatment options.
Paternalism is the principle that the physician has the main responsibility for medical decision making, this played a bigger role in the past, yet nowadays patient autonomy is the current standard, and the concept that drives informed consent, still beneficence and physician guidance are included implicitly.
However, when there is only a single medically reasonable option that has evidence-based support, it is suggested to provide directive counseling instead. An example of this would be a patient with a necrotic foot who does not want amputation. For this patient, the best and most medically reasonable treatment option would be to advise for amputation to prevent sepsis and death.
Any adult patient with decision-making capacity has the right to refuse treatment or withdraw consent at any time (Larner & Carter, 2016)
In some cases, the patient may have a mental illness that interferes with the ability to give consent. Informed consent in patients with psychiatric conditions is challenging as physicians often overestimate capacity, which is a patient’s ability to understand their condition, treatment options, and the consequences of accepting or rejecting treatment with a further expression of a given preference. In any patient, we must first assess if they have capacity. There are 4 criteria required to determine a patient’s decision-making capacity. (Lepping, 2015)
Communication: Patient indicates written, verbal, or non-verbal preference of one treatment option over another
Understanding: Patient understands their condition and the treatment options available
Appreciation: Patient recognizes having the condition and consequences of taking or rejecting treatment
Rationalization: Patient weighs the risk and benefits of their decision and gives reasons for their chosen option.
It is important also to note the difference between competency and capacity. Capacity is the ability to understand the risks, benefits, and alternatives of a medical intervention as explained in the informed consent. It is a clinical determination. Competency is the ability to act in the circumstances, including the ability to perform a job or occupation or to make decisions, and it is a legal definition determined by a court e.g. an adolescent can have capacity but not competency. (Barstow, 2018; Wasserman & Navin, 2018)
If a patient lacks capacity, the principle of substituted judgment is applied, this is the use of an alternative person to make the medical decisions, based on what they think the patient would want if the patient had capacity.
Parents have the legal right to make medical decisions for their children. Only in rare circumstances such as a life-or-death medical condition, can the judgment of the parent be overruled. If one encounters a parent who refuses life-saving treatment for their child, the best course of action is to talk to parents, explain the risks and benefits of a given treatment and the potential outcomes of not administering treatment. Hospital resources such as social services, risk management and the ethics committee can assist in these discussions. If the parents are unwilling or unable to provide consent for an emergency treatment, the physician should seek a court order to administer the life-saving treatment but proceed with care to save the life of the minor while the court order is in process (Committee on Pediatric Emergency Medicine, 2003; Gentry, 2017)
A different scenario that could happen is whenever one parent or legal guardian refuses treatment and the other agrees. In this scenario, consent from a single parent or legal guardian is considered enough to proceed with treatment. However, it is important to note that only parents with custody may give consent for medical care. In regard to shared custody, consent from one parent suffices, but an ideal situation is when both parents consent to treatment.
Assent is when the minor agrees to the proposed treatment. While it is preferable to obtain assent, it is not required for treatment.
In emergencies, there is a waiver of parental consent for medical decisions of their children. This waiver is regardless of the parents’ opinion, as the physician has legal authorization to do so, acting in the best interest of the child. Common examples of waived consent for minors are when urgent blood transfusions are needed, when there is airway instability, or emergency surgery is required. (Alessandri, 2011; COMMITTEE ON BIOETHICS, 2016)
There are situations when a minor can receive medical treatment without parental consent. Treatment of sexually transmitted diseases, substance abuse (in most states), pregnancy care (most states) and to administer contraception (state dependent) does not require parental consent. Notably, most states require parental consent for elective termination of a pregnancy.(Benjamin, 2018)
Emancipated minors are deemed legally competent to make medical decisions for themselves. An emancipated minor is defined as a person who is married, in current military service, considered to be financially independent, a high school graduate or homeless. Also, a minor can make medical decisions for his/her child even though they may not be competent of making medical decisions for themselves.
What about when the patient does not speak fluent English?
The physician who obtains informed consent must do so in a language that the patient understands. In non-emergencies, an interpreter must be consulted to assist in the informed consent process. However, in emergencies presumed consent may apply when the patient is unconscious or there is not enough time to consult an interpreter. (Chan, 2010; Lundin, 2018; Wilson, 2013)
