Medically speaking, consent means an informed, voluntary agreement to give permission for the undertaking of a specific procedure. Consent is legally valid only after the patient has acquired a thorough understanding of what is being consented to and what the probable risks involved are.
Why Must Consent Be Obtained?
Obtaining the consent of a patient is first of all, 100% necessitated by law. Furthermore, it is in both the doctor and patient’s best interest to have a full understanding and agreement upon any procedure that is to take place.
- By law, examining, treating, or operating on a patient without prior consent is considered an assault, even in cases where it is done in good faith and is beneficial to the health of patient.
- If a doctor does not provide the patient with correct and complete information before obtaining consent; that consent would be considered invalid in a court of law.
- Failure to obtain informed consent could be considered medical negligence in a medical malpractice lawsuit or other court case.
Various forms of consent
Possible forms of consent include:
- Verbal consent
- Written consent
- Implied consent
- Informed consent
Verbal or written consent is referred to as “express consent.” Implied consent, which deals with consent based on circumstantial factors, will typically only hold up in emergency first aid type situations, such as in the case of paramedics or first responders. In most medical contexts, express consent is necessary in order to proceed with treatment.
The primary field in which informed consent is used is within surgical operations. Again, with the possible exception of emergency situations, informed consent is required prior to any operation.
For consent to be legally considered “informed,” a number of factors are required. We’ve listed them below for your convenience.
- The patient must be thoroughly informed concerning his or her condition and aware of possible complications that could ensue if that condition is left untreated.
- The patient must be thoroughly informed concerning the nature of his or her proposed treatment plan as well the follow-up procedures required.
- The patient must be thoroughly informed of common risks associated with his or her recommended treatment.
- The patient must be informed of alternative procedures available for treatment, as well as all associated benefits and risks.
- The patient must be informed of potential complications associated with his or her treatment.
- The patient must be informed of his or her treatment’s rate of success and failure, in addition to the likelihood of success in his or her specific situation.
- All disclosure should be given using language and terminology the patient can clearly understand.
Complete or incomplete disclosure
In general, there are general guidelines within the medical community for various situations, encompassed by an overall standard of care. Specific requirements will vary based on the circumstances, and it is impossible to prescribe a one-size-fits-all approach. In most cases, however, the patient must be told everything detailed in the list above.
Exceptions to the rule of Full Disclosure
There are a few exceptions to the rule of full disclosure due to the therapeutic privilege that a physician may be given for purposes of his or her patient’s general wellness. Some of the factors involved in such an exception are describe below.
- Personality of the patient is to be considered.
- Physical and mental state of the patient is to be considered.
- Full disclosure may result in dangerously frightening the patient
- The patient is fearful to the point of paranoia or emotionally disturbed.
- The patient is expected to refuse a treatment with negligible risks due to irrelevant factors
- Malignancies or unavoidable fatal lesions are usually not disclosed to the patient directly.
- Risks can be explained to family members in certain circumstances
Rules of consent
There are a few more rules which must be mentioned in the context of informed consent.
- Consent is only valid if it is given by a patient above the age of 12 years. If the patient is under the age of 12 years, legally valid consent must be obtained from the child’s guardian for any kind of operation or treatment required. Consent by a guardian follows all the exact same rules required of consent from an adult patient.
- In cases of organ transplant, consent must be obtained from the guardian/heirs, with consideration given to any will left by the donor.
- In cases of pathological autopsy, consent needs to be obtained from legal heirs.
- In cases of legal autopsy, consent needs to be obtained from a judicial magistrate.
We hope this has been a helpful guide to the various aspects and requirements of legal consent within the context of medical practice. If you are a patient contemplating consent, be sure to research your condition and possible treatments yourself before making a decision. While a physician is supposed to know what is best for your particular condition, with today’s prevalence of medical error, it is in your best interest to stay informed.
The information here is strictly for informative considerations. This information has been furnished by Goldberg & Osborne, a personal injury law firm, as a source of information for visitors. The material has not been evaluated by the law office and was compiled by an independent writer. Goldberg & Osborne assumes no liability for this article or any errors that might be present.