Medico-legal issues are such “downers” to talk about, but in
this day and age it really needs to be discussed because we all want outcomes
that are safe and fair for all parties involved. Since I’m hoping to practice
medicine in a different country than the one I was trained in, it’s especially
important for me to learn about the laws and regulations in Canada.
According the Canadian Medical Protective Association (CMPA)
three criteria required for informed consent:
1.
Patient must have the mental capacity to
understand the nature and possible consequences of the procedure/treatment.
2.
The patient must be fully informed about the
procedure/treatment.
a.
The physician should disclose the diagnosis.
b.
The physician should disclose the nature of the
proposed investigation/treatment.
c.
The physician should disclose the expected
consequences for forgoing the proposed investigation/treatment.
d.
The physician should disclose reasonable
alternatives to the proposed investigation/treatment.
e.
The physician should disclose any material risks
of the proposed investigation/treatment and answer questions posed by the
patient.
i. Not
every possible complication needs to be conveyed to the patient.
ii. Complications
that occur frequently should be disclosed.
iii. Complications,
however rare, with significant consequences for the patient (e.g. death,
paralysis) need to be disclosed.
iv. Risks
that a reasonable person in the patient’s position would consider significant
should also be disclosed.
3.
The consent must be given voluntarily
The consent form itself does not equal real consent. The
explanation given by the physician and the dialogue between physician and
patient about the proposed procedure/treatment is the all-important element of
the consent process (no explanatory pamphlet/video can replace this, but if
supplementary material was provided it should also be documented). A signed
form will be of relatively little value later if the patient can convince a
court that the explanations were inadequate or absent. A summary of the consent
discussion entered into the medical record at the time is the best defense
against an allegation of lack of informed consent; the documentation of the
consent discussion need not be lengthy or detailed. The physician can delegate
the responsibility of obtaining consent to a colleague, medical trainee, or
nurse who has the knowledge and experience to provide information tailored to
the requirements of the patient and circumstances.
In witnessing a signature, the witness simply confirms the
identity of the patient who signed the document and that the person’s mental
state at the time appeared to allow for an understanding of what was signed.
The witness has no obligation to provide pre-treatment explanations and is in
no way attesting to the adequacy of the explanations given by the physician.
If a surgeon at a teaching hospital delegates certain
surgical procedures to his/her trainees, he should disclose to patients the
involvement of trainees in these procedures.
Battery in the medico-legal context is when a physician
carries out an investigation/treatment in the absence of valid consent or when
treatment went beyond or deviated significantly from that for which consent was
given. Assault and battery may also apply when consent was obtained by way of
serious misrepresentation.
In the emergency department, however, consent is not needed
when a patient is at imminent risk of serious injury AND obtaining consent is
either not possible or would increase risk to the patient. This rule assumes
that most people would want to be saved in an emergency. However, a capable and
informed patient can refuse treatment or part of treatment (even if it is
life-saving); and emergency treatment CANNOT be initiated if a competent
patient has previously refused the same or similar treatment (for same problem)
and there’s no evidence to suggest he has changed his mind or an advanced
directive (such as DNR) is available. Refusal of help in a suicide situation
still warrants treatment. When in doubt, initiate treatment; it can be
withdrawn at a later time.
Children presenting to the ER are treated in the same way:
treat immediately if the patient is at imminent risk. The patient does NOT have
to reach age of majority to give a valid informed consent. However, if the
patient in question is obviously not capable to make a decision (like a baby or
toddler), parents/guardians have the right to make treatment decisions; if they
refuse treatment that is life-saving or will potentially alter the child’s
quality of life, Children’s Aid Society (CAS—there is one in every hospital)
must be contacted, in which case the consent of CAS is needed to treat.
Common issues needing consent include HIV testing and
administration of blood products. Jehovah’s Witnesses are the most common group
who will have issues with latter; they may refuse all blood products (even
autologous), in which case treatment needs to provide the highest possible
quality of care with out the use of blood products (e.g. crystalloids for
volume expansion like hydroxyethyl starch). They will generally sign hospital
forms releasing medical staff from liability.
An extension of informed consent is the topic of informed
discharge. During informed consent, patients are informed of what can
potentially go wrong; during informed discharge, patients are informed of the
symptoms and signs that would indicate something wrong may be happening. They
should also be given a sense of urgency of the response required and where best
to seek medical attention. The information should be tailored to each patient
and clinical situation.
In the emergency room setting, for many patients there are
diagnostic uncertainty on an initial/subsequent visits. These patients should
be made aware of this uncertainty—what is known and what is unknown—so that any
continuation, escalation, or change in symptoms may prompt reevaluation. Just
like informed consent, a discussion between physician and patient is warranted;
any detailed explanatory pamphlet or video would not suffice. Documentation of
the advice provided on discharge should be documented in the medical records.
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