If the patient is not capable of understanding these elements or making a decision, the doctor turns to the person named in a health care power of attorney. If none exists, the doctor may turn to another authorized surrogate decision maker. If urgent or emergency care is needed and an authorized decision maker is not immediately
available, the doctrine of presumed consent applies: People are presumed to consent to any necessary emergency treatment. Self-determination means that adults of sound mind have the right to decide what shall be done to their body. It is the foundation of the legal and ethical doctrine of informed consent. The process of informed consent should involve discussion between the individual and the doctor. Patients should be encouraged to ask questions about their condition and treatment
options, and doctors should share facts and insights along with support and advice. Doctors should present the information in a way that is understandable to the patient and communicates the risks and benefits clearly. The law requires that doctors take reasonable steps to communicate adequately with patients who do not speak English or who have other communication barriers. Informed consent is substantially achieved when patients understand Their current medical status, including its likely course if no treatment is pursued Potentially helpful treatments, including a description and explanation of potential risks, benefits, and burdens Usually the health care practitioner’s professional opinion as to the best alternative Uncertainties associated with each of these elements
Typically, a document summarizing the discussion is signed by the patient for any major treatment decisions.
Along with the right of informed consent comes the right of informed refusal. People who have legal and clinical capacity may refuse any medical care. They may refuse care even if it is something almost everyone else would accept or something that is clearly life-saving. For example, a person having a heart attack can decide to leave the hospital even if that may lead to death. Even if other people think the decision is wrong or irrational, the decision to refuse treatment cannot be used by itself as proof that the person is incapacitated. In many cases, people refuse treatment based on fear, misunderstanding, or lack of trust. But refusal may also be a product of depression, delirium, or other medical conditions that can impair the person's capacity to make health care decisions.
A refusal of care should prompt the doctor to initiate further discussion to determine why the patient refuses care and whether any concerns the patient has about accepting care can be corrected. For example, patients who refuse care because they cannot afford it could be helped to apply for public benefits such as Medicaid or be told that a suitable payment plan could be arranged. A patient's competent refusal of treatment is not considered to be attempted suicide, nor is the doctor’s compliance with the patient's refusal legally considered doctor-assisted suicide. Rather, any subsequent death is legally considered to be a natural consequence of the disease process itself.
Sometimes, a patient's refusal of treatment may harm others. For example, patients who refuse treatment of certain infectious diseases, such as tuberculosis, place other people at risk of infection. Also, people who refuse to allow treatment of others, such as a minor child or a dependent adult, may place that other person’s health at risk. In such cases, doctors often consult lawyers, judges, and experts in ethics.
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Three key elements [Page 1 of 2]
For consent to be considered valid:
- it must be voluntary
- the patient must have the mental capacity to consent
- the patient must be properly informed
1. Voluntary consent
- Patients must be free to consent to or refuse treatment.
- Consent should be obtained without duress or coercion.
| Case: A patient brought by the police |
Background
The police bring a man from the airport customs to an emergency department and request that you do the appropriate examinations to determine if the man is trafficking in cocaine. The police suspect he has swallowed the drugs in condoms. Your patient does not give consent for the examinations.
Think about it
As the emergency physician, what is the best next step?
Suggestions
In this case, the physician should explain the grave risks if a condom containing cocaine ruptures internally. The patient might then consent to examination.
In these types of circumstances, physicians should be more careful than usual to assure themselves the patient is in full agreement with what has been suggested, that there has been no coercion [for example, by exaggerating the risks of consenting or of refusing] and that no one else has imposed their will on the patient.
| Case: A 55-year-old man scheduled for colonoscopy |
Background
A gastroenterologist meets a patient for the first time immediately before a screening colonoscopy. He describes the list of potential risks for colonoscopy and requests the patient sign the consent form before proceeding.
Think about it
Is the patient consenting voluntarily?
Suggestions
Ideally the patient would be provided information about the nature and risks of an investigation as early as possible in the process. While timing is important when engaging in a consent discussion — especially for an elective procedure — the practical realities of providing care to all patients in an efficient way may make this difficult.
In this case, the patient has already made the decision to undergo the procedure and has completed the required preparation. Despite this, the patient is entitled to engage in a full discussion and should not be made to feel obliged to continue with the investigation.
2. Capacity to consent
A patient is considered to have the capacity to consent if he or she understands the:
- nature of the proposed investigation or treatment
- anticipated effect of the proposed treatment and alternatives
- consequences of refusing treatment
Patient understanding
- Take reasonable steps to be satisfied the patient comprehends the consent discussion.
Physicians have a duty to take reasonable steps to be relatively satisfied their patients have received the appropriate information, particularly when there may be language difficulties, emotional issues, or questions of mental function.
By engaging in dialogue with the patient, a physician will be reasonably confident that the patient appears to understand the explanation of consent. One way to achieve such confidence is the teach-back technique: asking the patient to re-phrase what they have just been told and inviting the patient to ask questions. However, what constitutes "reasonable steps" will depend on the facts and circumstances of the particular situation.
As appropriate, a physician may wish to encourage a patient to invite a family member or friend to attend the discussion.
Patients who refuse treatment
- A capable patient has a right to refuse to follow the advice given.
| Case: A patient with skin cancer |
Background
Mr. Jones, a successful tax accountant, has been diagnosed with an invasive melanoma. His dermatologist wishes to excise the cancer as soon as possible. Despite being informed of the risks, Mr. Jones insists on delaying the surgery by four months so he can continue to work during his busiest time of year.
Think about it
What is the dermatologist's next step?
Suggestions
Even when faced with an serious operable cancerous lesion and the strong likelihood of a good surgical outcome, a mentally capable patient may instead choose a less effective treatment than what is recommended, despite a thorough discussion of the risks and benefits of surgery. This is the patient's right.
Mr. Jones should be told about the consequences of leaving the condition untreated. Although there should be no coercion [i.e., unduly frightening patients who refuse treatment], the courts now recognize there is an obligation to inform patients about the potential consequences of refusing treatment.
Suggestions continued
The dermatologist may wish to advise the patient to discuss with his family about the decision to delay the surgery. If the patient persists in wanting to delay the surgery, consultation with a colleague for a second opinion may be helpful.
Minors
- Except in the province of Québec, the criterion for capacity to consent is maturity, not chronological age.
- A child must be able to appreciate the nature and consequences of their decision.
- Report to child protection authorities
Child protection authorities: The agencies in each province or territory charged with the protection and welfare of children, having the ability to intervene to protect children from harm.
if a parent/guardian refuses medically necessary treatment. - In Québec, the parent/guardian must consent if the child is under the age of 14.
| Case: A request from a youth |
Background
A 14-year-old girl comes to see you to ask for a prescription for birth control pills. You find her to be very mature and sensibly wanting protection.
Think about it
Can this youth consent to treatment or must her parents be involved?
Outcome
Yes, this youth can consent to treatment. If, in the physician's judgment, the patient is a mature minor the physician cannot inform the parents without the patient's consent.
A young person is considered capable of consenting or refusing treatment [i.e. a mature minor] if the physical, mental, and emotional development of the person will allow for a full appreciation of the nature and consequences of the decision.
Only Québec has established a fixed age of 14 years, below which the parent or guardian or the court must consent to the proposed treatment.
Generally, a capable minor would need to consent to the involvement of parents in healthcare decisions. Depending on the nature of the medical condition and the complexity of any proposed treatment, it is often prudent to stress the importance of involving the parents, and to obtain permission to do so.
| Case: A conflict with the parents of a child |
Background
Ann, who is eight years old, presents with polydipsia, polyuria, polyphagia, and weight loss over the past two months. You diagnose Type 1 diabetes based on her blood glucose.
Ann requires insulin therapy; however her parents refuse, believing she can be managed with diet and a new herbal remedy they have read about. What should you do?
Think about it
What should you do?
Suggestion
A parent or guardian is required to act in the best interests of the child. If medically necessary treatment is refused, the doctor is obliged to report the matter to the child protection authorities.
Child protection authorities: The agencies in each province or territory charged with the protection and welfare of children, having the ability to intervene to protect children from harm.
Life threatening situations
If life or limb are in danger and the patient is unable to consent and the substitute decision maker is not immediately available, a doctor has a duty to:
- Do what is immediately necessary.
- Respect any known previous wishes of the patient.
- Obtain consent as soon as reasonably possible.
| Case: Life-threatening injury requiring immediate treatment |
Background
While on vacation, a young woman who is hiking in the woods is attacked by a bear. She is brought to the emergency department unconscious with extensive blood loss. No substitute decision maker is available.
Think about it
Can you treat her to save her life without her consent?
Lesson learned
Yes. In an emergency when the patient or substitute decision maker cannot consent the physician may proceed if there is demonstrable severe suffering or an imminent threat to the life or health of the patient.