Decision-Making in Healthcare: Consent and Refusal

Reaching a Decision

After disclosure and checking for understanding, reaching a decision involves four potential avenues:

  • Implied Consent
  • Expressed Consent
  • Expressed Refusal
  • Assent or Dissent (for patients lacking decision-making capacity)

Implied Consent

  • Definition: Consent inferred from a patient's actions, behaviors, or gestures.
  • Examples:
    • Patient holds out their wrist when the doctor says, "I'd like to take your pulse."
    • Patient extends their arm for phlebotomy when admitted to the hospital.
  • Withdrawal: Implied consent can be withdrawn at any time, even after initially implying agreement.
  • Limitations:
    • Voluntarily seeking medical attention does not automatically imply consent for examination, investigation, or treatment.
    • Intentional touching without consent (battery) is forbidden; a surgeon performing surgery without consent is an example.
    • A physician exceeding the scope of the proposed procedure may be considered battery.

Expressed Consent

  • Definition: Explicit agreement to proceed with treatment, given either orally or in writing.
  • Oral vs. Written:
    • Oral consent is acceptable in many circumstances.
    • Written consent is often necessary, particularly for:
      • Surgery
      • Invasive diagnostic or therapeutic procedures
      • Procedures involving moderate or deep sedation.
      • Treatments or tests with substantial risk.
  • Documentation:
    • Physician's documentation of discussions regarding disclosure, risks, benefits, alternatives, and patient questions may suffice in some jurisdictions.
  • Informed Consent Form: Serves as additional proof of the consent process and validates patient understanding.

Elements of an Informed Consent Form:

  • Identification of who will perform the procedure, including trainees and their supervisors.
  • A detailed description of the intervention, including:
    • Benefits
    • Risks
    • Potential complications
    • Alternatives to the intervention
  • Specificity (e.g., specifying the left knee for surgery rather than the right).
  • Serial Consent: Language addressing future, repeated procedures (e.g., blood transfusions), provided the risk-benefit calculation remains consistent. If the risk-benefit changes, a new consent is needed
  • Acknowledgement: A statement that the patient has had the opportunity to ask questions and had those questions answered.
  • Evidence of Consent:
    • Patient signature (or an "X" if unable to sign)
    • Date of signature.
    • Signature and date from the healthcare provider.
    • Witness signature (required in some jurisdictions).
  • Telephone Consents: Require a witness to attest that the authorized decision-maker received and understood the information.
  • Legibility: Ensuring that all written information is legible and understandable, using patient-friendly terminology rather than medical jargon.
  • Authorization: Consent signifies the patient is authorizing the healthcare practitioner to act on their decision.

Expressed Refusal

  • Patient's Right: A patient has the right to decline any proposed treatment or diagnostic test after receiving adequate information.
  • Withdrawal: Patients can withdraw or modify their decision at any time, except when it's not possible (e.g., during surgery under anesthesia).
  • Ensuring Understanding: Healthcare practitioners must ensure that patients understand the implications of their refusal.
  • Persuasion vs. Coercion: There is a role for persuasion, but badgering or forcing the issue becomes coercion, which should be avoided.
  • Continuing Obligation: Healthcare providers still have an obligation to provide care for the patient's condition, even if they refuse the recommended treatment.
  • Potential for Change: Recognize that a patient's refusal may change in the future, necessitating ongoing exchange of information.