In health law, it is vital for the patient to be fully informed of the tests and treatments to be administered. The medical practitioner attending to the patient is supposed to disclose all the necessary information concerning the medical condition of the patient and the appropriate tests and treatments required. All this information should be given to the patient to enable him make informed decisions whether to undergo the required treatment or not.
Therefore, the whole idea of making the patient to understand the benefits and the risks associated with certain tests and treatments required for his medical condition is what is termed as informed consent. Informed consent largely relies on patient’s autonomy in consideration with the legal and the moral concerns where by the patient is fully entitled to make choices concerning his medical and health status (Rozovsky 11).
Sociological analysis of informed consent
The elements of informed consent
The patient is supposed to be well informed of his health and medical condition before making any decisions. Therefore, the patient should be fully informed when making decisions concerning medical tests and treatments to be made. The elements that make up a complete informed consent include the following:
The first one is the procedure and the nature of the decision to be made.
The second one is the possibility of other alternatives that are reasonable to the decision made or proposed intervention. The third element is the assessment of the benefits, risks as well as the uncertainties attached to each and every possible alternative. The fourth one involves assessing the understanding of the patient. The fifth and final element is the acceptance or rejection of the proposed interventions by the patient. (Faden 104)
The validity of the patient’s consent depends on the competency of the patient as well as the manner in which the patient has given his consent. The consent given by the patient under health care conditions must be truly voluntary. The patient must be proved competent enough to give consent. In most cases, patients may not be aware that they are supposed to participate in the process of decision making concerning their health conditions. In such cases, the patients appear powerless and vulnerable to any decisions made by medical practitioners and are very ready to sign medical forms given to them.
This should not be the case since the patients may sign the forms without understanding the consequences that might follow their decisions. To minimize this, the medical practitioners and the patients need to discuss in details the medical attention required and encourage the patients to make their decisions voluntarily. The medical practitioners should make the patients understand that they are participants in the decision making process. To make the patients understand better, the medical practitioners should use layperson’s terms when discussing with the patients. Assessment of the patients’ understanding needs to be carried out after every discussion (Beauchamp 86).
In basic consent, the medical practitioner need to inform the patient of what he intends to do concerning the patient’s health condition. He must obtain consent from the patient to perform any medical practices. When blood is needed from the patient, it is very vital to apply basic consent. However there are some cases of basic consent where the participation of the patient in decision making is low especially when the community consensus is very high.
Standard approaches to obtaining information for decision making
The first one is called reasonable physician standard. In this approach, information is based on what the medical practitioner or the physician will say about the interventions that are being proposed. The approach gives power to the physician to select the appropriate information that need to be made known to the patient. According to the research done concerning this approach standard, the typical medical practitioners tend to disclose very little information to the patients. This make this approach inconsistent in terms of the aims of informed consent as it bases on the opinion of the medical practitioner rather than what is supposed to be disclosed to the patient.
The second approach is known as the reasonable patient standard. This approach looks at what an average patient requires to know and qualify as an informed participant to make informed choices. The approach is considered the best according to the evaluation done since it focuses on the needs of the patient in terms of the information required before making any choices. The patient is subject to interventions that he or she understands.
The last approach is termed as the subjective standard. It deals with the requirements of the patient in terms of the information he needs to understand his medical or health condition and make informed decisions afterwards. The implementation of this standard of approach into practice is very challenging as the information is supposed to be tailored to every patient.
The three approaches are applied depending on the legislation. In United States, different states apply different approaches. The state of Washington applies the reasonable patient standard to ensure that each and every patient has a voice towards the medical decisions made on his or her health condition (Rozovsky 31).
Sociological and legal issues concerning informed consent
The first one is the interventions where informed consent needs to be applied. Informed consent must be applied in health care institutions dealing with patients from different sociological backgrounds. Those who require medical practices like surgery or other invasive actions must be presented with a consent form. After agreement on the clinical decision concerning the patient’s medical condition, this form is supposed to be signed by both the medical practitioner and the patient to mark the termination of the conversation or dialogue.
Although most of the medical decisions does not require written consent, a great length of discussion is very vital to the patient especially those undergoing screening tests. They need to be aware of the positive and negative outcomes of the tests. The discussions should be carried out in layman’s terms to avoid misunderstanding (Rozovsky 59).
Another issue is concerning the ability of the patient to take part in the process of making health decisions. There has been lack of agreement on when to question the patient’s ability to take part in making decisions concerning his health status. The resolution for this issue is not yet clear because patients experience a lot of stress when sick and can lead to depression or even anxiety. The stress can also cause fear and this will prevent proper decision making.
However, this should not be used as an excuse to prevent patients from making decisions concerning their personal health conditions. Therefore, the way forward is to take good precautions that will ensure patient’s fitness to make sound decisions. This calls for application of various decision making standards that will test the capacity of the patient to make sound decisions. Generally, the patient should be assessed to determine his ability to participate in making the decisions. First, the patient should be assessed to determine whether he understands his medical situation. The second assessment should test the patient’s understanding of the risks and uncertainties related to the proposed decisions.
The third one should test the patient’s ability to communicate a decision effectively from his or her understanding following the discussion. Rejection of treatment does not necessarily imply incompetence. This is because competent patients still have the power to reject certain treatments even if they are very vital. The rejection may only mean that further assessment need to be done to test the understanding of the patient as well as his beliefs. Further complications in understanding the patient may require intervention from specialized psychiatrists. They can be consulted to shade more light on the patient’s situation (Lovat 76).
There are also issues in a case where the patient’s ability or capacity to make decisions varies from time to time. In such a case, it is advisable to always strive to conduct discussions and medical decisions when the patient is in a lucid state. This can even call for “medical lightening up” mainly to make sure that the patient is involved or forms part of the decision making panel concerning his or her health status (Lovat 76).
There is also a case where the patient is completely not in a position to deliver informed consent. In this situation, it is concluded that the patient is incapacitated or incompetent to participate in health care decision making concerning his medical condition. When this happens, there is need to find a surrogate decision maker for the patient. A surrogate decision maker is a person who is selected to make decisions for a patient who proves incompetent or incapacitated.
He is chosen to speak on behalf of the patient. He is expected to engage in a discussion with the medical practitioner of the patient, understand the health situation of the patient, understand the proposed decisions and be able to make choices that would otherwise have been made by the patient. In other words, the sentiments of the surrogate decision maker should reflect those of the patient. This calls for not just anybody but the person who understands the patient well including his medical tastes and preferences. In a case where no one meets these qualifications, it is advisable that the medical officer makes decisions on behalf of the patient until an appropriate surrogate decision maker is found. The physician is supposed to make decisions that will suit the interests of the patient (Rozovsky 96).
Lastly, there is an issue of presumed or implied consent. There are emergency cases where the patient is unconscious. When this happens, the patient becomes incompetent to make decisions. If the surrogate decision maker is not found, the officers in charge should consider presumed consent but not obtained consent. When the patient is admitted in the hospital in unconscious state, it does not always indicate implied consent to all the treatments that may be proposed. This is because the interests of the patient may not be the same as that of the medical practitioner. Although it is necessary to do everything possible to ensure involvement of the patient in decision making, the beneficence principle requires the medical practitioner to act on behalf of the patient to save life in case of emergence (Rozovsky 118).
How the law works
The law concerning informed consent lies under negligence, assault and battery. For one to accuse the medical practitioner of negligence in the court of law, he has to provide evidence that indeed the medical practitioner was assigned the duty to take care of the patient. Further evidence is also needed to ascertain that the breach of the duty of care caused the injuries that were evident. Patients have the right to accuse the doctors if they sustain known medical side effects that they were not warned of at the time of treatment. The doctors will thus be liable for any penalties taken by the court of law. Considering surgery, there might be a possibility of a patient loosing his or her eyesight.
If the surgeon does not discuss this possibility with the patient and it happens that the patient looses his or her eyesight after the surgery, then the surgeon has a case to answer in the court of law incase the patient alleges negligence. This is because the duty of care assigned to the doctors included warning the patient about the possible outcomes of surgery. May be if they would have warned the patient, then he or she might have declined the surgery (Mason 114).
Considering laws related to battery, consent plays a big role. Any physical touch to a person whether performing medical treatment without his or her consent is considered a crime. However, if the person consents, then all this activities become lawful. In a situation where surgery is to be performed to a patient, the surgeon may obtain permission or consent to carry out the surgery. If he goes ahead to perform another treatment without permission from the patient, then he might be accused of battery.
In order for consent to be taken as valid, the law requires that the patient be competent and under no influence whatsoever to take that decision. The patient also needs to be fed with adequate information or discussion concerning the issue at hand. The tests for patient’s understanding also need to be done (Mason 121).
Concerning the minors, the law works in the following way. Any patient who is above eighteen years always has the right to make decisions concerning any treatments to be taken. For patients below the age of eighteen, the law is not very precise. Considering the Gillick case, it was concluded that a child above sixteen years should be given a chance to make decisions concerning his or her health conditions (Mason 123). This is only if they are proved to have sufficient understanding of their situation.
The parents have no right to interfere with their decisions. However, the recent care involving Re W in 1992 concluded that there should be no one below the age of eight to make decisions concerning medical steps to be taken (Mason 123). In conclusion, the law stated that unless the child is below fourteen years, the parent and the child need to reach an agreement before any consent is made unless it is an emergency situation. For children less than fourteen years, the parents have full obligation to decide for them.
The law emphasizes on proper documentation of the communication process to seek consent from the patient. The discussion between the doctor and the patient need to be signed and document by both parties. In case of dispute, the written document can serve as evidence in the court of law. This evidence may be very helpful on the side of the patient to allege battery and negligence while the doctor may use this document to defend himself from the patient’s allegations (Mason 126).
Problems with informed consent
The main problem with informed consent is the definition of implicit consent. Actions taken by patients may signal some form of consent but this does not clearly define the degree. When a patient takes a step to visit a medical practitioner, it might imply that the patient has already agreed to be examined for any medical complications. The problem is that the doctor may not be aware of the extent of this implied consent.
Any further medical treatment or examination may require further consent from the patient. Considering this problem, the law has given an allowance to courts to set the degree of implicit consent based on assessment of the case at hand. The other problem is the degree at which the medical practitioner needs to warn the patient concerning certain risks. Brief mention of the risk or explanation of the risk to the patient may influence the patient’s decisions as well as reactions before and after the treatment. This remains a big challenge on the part of the medical attendants (Jones 41).
Informed consent is a term widely applied in health care. It implies involving the patient in a discussion concerning his or her medical condition. This will make the patient choose medical options that will suit his or her desired interests. The patient will be able to make informed decisions concerning the treatment to be undertaken. The logic is to make the patient account for his decisions since the outcomes may be positive or negative following the decisions made. Failure to obtain consent from the patient is considered illegal, unethical and may lead to a court case.
Beauchamp, Thredian. Principles of Biomedical Ethics. Oxford: Oxford University Press, 1994. Print.
Faden, Rerherd. A History and Theory of Informed Consent. Oxford: Oxford University Press, 1996. Print.
Jones, McCall. “A fundamental problem of consent commentary: The legal position.” BMJ 3.1 (1999): 37-46.
Lovat, Mitchell. Bioethics for medical and health professionals. Sydney: Social Science Press, 2001.
Mason, Smith. Law and Medical Ethics. London: Butterworths, 1999. Print.
Rozovsky, Freid. Consent to Treatment: A Practical Guide. Boston: Free Press, 2003. Print.