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Lecture for
4th year medical students Salman bin Abdulaziz University Kharj on
May 7, 2013 by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard),
DrPH (Harvard)
1.0 CAPACITY (COMPETENCE) TO GIVE CONSENT
Informed consent is given only by
a person who is capacitous (competent). The following are criteria (tests of
capacity) are used to judge whether the patient is capacitous: (a) Understands
what the procedure is. (b) Understands the reason for the procedure. (c) Understand
the benefits and risks of the procedure. (d) Has the ability of judging and
weighing the information before coming to a decision (e) Has sufficient memory
to retain information given for a long enough period to enable effective decision
making (f) Understands the consequences of refusing treatment
2.0 THE RIGHT OF AUTONOMY
The patient has the right of
autonomy which is control of what is done to his/her body. Autonomy is a basic
human right that cannot be violated except in exceptional circumstances
explained below. No medical examination or medical procedures can be carried
out without informed consent of the patient except in cases of legal
incompetence. The patient has the purest intentions in decisions in the best
interests of his or her life. Others may have bias their decision-making.
3.0 CONSENT FOR COMPETENT ADULTS
Consent can be explicit (oral,
written, or non-verbal) or implied. For example a patient undressing for
examination implies consent but often this is not enough we need to ask
specifically for informed consent as explained below.
The patient must be free and
capable of giving informed consent. Pressure on the patient by the family or
the healthcare workers invalidates consent. Informed consent requires
disclosure by the physician, understanding by the patient, voluntariness of the
decision, legal competence of the patient (also called capacity), disclosure of
all treatment alternatives and recommendation of the physician on the best
course of action, decision by the patient, and authorization by the patient to
carry out the procedures. Consent should be properly documented.
The patient is free to make
decisions regarding choice of physicians and choice of treatments. Consent is
limited to what was explained to the patient except in an emergency. The scope
of consent is limited to what the patient agreed to and the procedures cannot
exceed that except in emergencies. Consent also has a time limitation. If a
long time elapses between consent and the procedure it is better to obtain new
consent.
The patient is free to withdraw
consent at a later time and this decision must be respected. Refusal of
treatment is a human right that must be respected. Refusal to consent must be
an informed refusal (patient understands what he is doing). Refusal of
treatment should be documented properly. Refusal to consent by a competent
adult even if irrational is conclusive and treatment can only be given by
permission of the court. A patient who refuses a treatment has no automatic
right to demand an alternative and may be more expensive procedure.
Doubts about whether consent was
or was not given consent are resolved in favor of preserving life.
In some legal systems spouses and
family members do not have an automatic right to consent and a spouse cannot
overrule the patient’s choice.
Informed consent is still
required for physicians in special practices such as a ship’s doctor, prison
doctor, and doctors in armed forces. Police surgeons may have to carry out
examinations on suspects without informed consent.
Physician assisted suicide,
active euthanasia, and voluntary euthanasia are illegal even if done with the
consent of the patient.
4.0 CONSENT FOR INCOMPETENT ADULTS
Three tools are used for consent
in cases of incompetent adults who are unconscious regarding starting,
withholding, or withdrawal of treatment: a do not resuscitate order (DNR), advance
directives and proxy informed consent by the family or any other person with
the power of attorney. In some legal systems the family does not automatically
have the right to decide unless authorized beforehand. In some cases courts may
be asked to intervene and solve the controversy.
A do not resuscitate order (DNR)
by a physician could create legal complications and must be used with care.
Consent can be by proxy in the
form of the patient delegating decision making or by means of a living will. The
living will has the following advantages: (a) reassuring the patient that
terminal care will be carried out as he or she desires (b) providing guidance
and legal protection and thus relieving the physicians of the burden of
decision making and legal liabilities (c) relieving the family of the mental
stress involved in making decisions about terminal care. The disadvantage of a
living will is that it may not anticipate all developments of the future thus
limiting the options available to the physicians and the family.
The device of the power of
attorney can be used instead of the living will or advance directive. Decision
by a proxy can work in two ways: (a) decide what the patient would have decided
if able (b) decide in the best interests of the patient.
In general in cases of
incompetence and in the absence of an alternative decision mechanism the
physician in charge does what he thinks is in the best interests of the
patient. This is particularly relevant in cases of emergencies.
5.0 CONSENT IN SPECIAL CASES
Mental patients cannot consent to
treatment, research, or sterilization because of their intellectual
incompetence. They are admitted, detained, and treated voluntarily or
involuntarily for their own benefit, in emergencies, for purposes of
assessment, if they are a danger to themselves, or on a court order. In this
case treatment is compulsory.
Nutrition, hydration, and
treatment can be withdrawn in a persistent vegetative state since the chance of
recovery is low. There is no moral difference between withholding and
withdrawing futile treatment.
Labor and delivery are
emergencies that require immediate decisions but the woman may not be competent
and proxies are used. Forced medical intervention and cesarean section may be
ordered in the fetal interest. Birth plans can be treated as an advance
directive.
Suicidal patients tend to refuse
treatment because they want to die.
6.0 CONSENT FOR CHILDREN
In general parents or persons
with parental responsibilities make decisions for children. Competent children
can consent to treatment but cannot refuse treatment. The consent of one parent
is sufficient if the 2 disagree. Parental choice takes precedence over the
child’s choice. Courts can overrule parents. Life-saving treatment of minors is
given even if parents refuse. Parental choice is final in therapeutic or
non-therapeutic research on children.