THE PITFALLS OF INFORMED CONSENT

Abstract

An informed consent document signed by a patient before surgery is supposed to provide evidence that he effectively received adequate information to be able to give informed consent. In fact, it only provides limited legal protection to the surgeon. Although the situation may vary from one country to another and, within each country, from one court to another, a standard consent form is usually considered inadequate, and a procedure-specific consent form appears as a minimal requirement. Even this will provide limited protection if a patient has presented a complication not listed. When confronted to a determined lawyer who pleads the absence of informed consent, a surgeon will most often not be able to give evidence for disclosure of some specific items to the patient.

This raises a number of questions:

• - How extensive should the information be? Should compliance with a legal obligation always prevail over common sense?

• - How much information can the average patient understand, store up and recall? How make sure that information has transformed into knowledge?

• - Is it fair to require a surgeon to decide himself that his patients have been adequately informed, without being suspected to have faced a conflict of interest? Or should an independent authority be responsible for attesting, after an examination interview, that patients have received adequate information and are eligible for surgery?

• - Should disclosure of all complications be forced on a patient who does not wish to know about them? Common sense and legal obligations may diverge on this point.

• - Should preoperative consultations be (video) taped so as to procure objective evidence to serve in case of subsequent litigation?

In litigation cases, the burden of proof used to bear on the patient but has now more or less overtly been transferred to the surgeon, while he is not offered the possibility to face such demands in the current organisation of health care in most countries. Even though paternalistic medicine is no longer politically accepted, many patients still expect counselling rather than just information; law makers and lawyers have decided that these patients are wrong, but it is difficult for physicians who have been trained in the spirit of Hippocrates’ oath to behave merely as informers and technical care providers.

Medical activity takes place nowadays under ambiguous conditions. There is a politically accepted vision of medicine in which choices and decisions are made by the patients, as it is supposedly possible to bring all of them to a level of knowledge and understanding which makes this possible; when going in the field, things are different, and most patients are still looking for expert counselling in addition to or in lieu of information. As compared to the situation which prevailed a few decades ago, patients are much less ignorant about medicine in general, but the problem is that medicine has progressed far more rapidly than the layman’s medical knowledge.

Besides, a number of studies have shown that retention of information by patients decreases rapidly over time and is fragmentary, with potential benefits from surgery being recalled much better than possible complications. Patients have also been shown to ingenuously deny receiving information despite documented evidence; ingenuous fabrication, i.e. affirmation of an untruth, is also a classical observation

We know all too well that a number of our patients come to surgery without a proper comprehension of their pathology and therapy, and we have to pretend that we are not aware of it, otherwise we would have to deny those patients the benefit of surgery. To change this would require a major involvement not only of the medical profession but also of the almighty health care administrations and of the funds providers