Forum.
Legal Position on Consent
The legal position on consent continues to evolve. In the UK the Bolam principle established the justification for disclosure based on a body of medical opinion. However this has been increasingly questioned and a move towards the balance of power being with the patient (Marks 2003). In the case of Canterbury v Spence in the USA, the right to self-determination for patients was described as the most pre-eminent factor. This was based on the following points:
- Each patient has the right to determine what is done with his or her body
- Proficiency in diagnosis and therapy is not a full measure of a physician’s responsibility, the wider skills in communication and decision-making need to be recognised.
- It is the prerogative of the patient (not the physician) to determine in which direction his interests seem to lie.
- Elucidating the patients’ “perils and options” is a prerequisite before obtaining consent.
- The physician’s duty to inform is not dependent on the patient’s request for disclosure. A physician has a duty to inform when a reasonable patient in the patient’s position, if warned of the risk, would be likely to attach significance to it.
Mayberry (2002) studied groups of patients and lawyers views on what constituted sufficient information in making a decision about healthcare. Lawyers required more information. In particular the essential information should include:
- Why is the intervention needed?
- What are the common dangers?
- How is it done?
Bridson (2003) calls for the recognition of the movement in law from the medical opinion to the reasonable patient. This process needs a change from disclosing information to sharing, and instead of focussing on disclosure to focus on patient objectives first. The Bristol Enquiry held in the UK looked at the process of consent leading up to cardio thoracic operations in children, one finding was that: healthcare professionals should adopt the notion of partnership between themselves and the patient, whereby the patient and the professional meet as equals with different expertise.
The move to a reasonable patient approach to consent helps to overcome the risk of paternalism in decision-making. However faults in this approach also exist. The patient approach is hypothetical and only truly respects the patient’s autonomy when they meet the criteria of a “typical” patient. What the typical patient would want to know is as much a topic of a debate. For example, in Louisiana, the Medical Disclosure Panel defines risks that must be disclosed for any given procedure (Mayberry 2002). We need to be careful that by trying to respect the full autonomy of all we don’t cause to harm to those who would rather not be fully informed.
The evidence in this section is level IV / V.
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