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Understanding Valid Consent in Medicine through Cases of Negligence

Consideration was given for the editing and publication of this post. 

A shift toward patient-centered health care has been in motion for a number of years, with more individuals recognizing the need and having a strong desire to take an active role in their well-being and their treatment. The practice of informed, or valid consent puts patients at center stage of medical care, but it can create some gray area for doctors, nurses, and the medical staff tasked with caring for patients in both the public and private sectors. To better take part in the trend of a collaborative patient-provider relationship, it is first necessary to understand the principles of informed consent and what that means in practice.

Defining Informed Consent

From both an ethical and legal standpoint, patients seeking medical care have the right to decide on the best course of treatment for their individual situations based on valid, material information. For consent to be valid, patients must agree to a procedure or treatment based on the following three principles:

  • The patient must have the capacity to decide about his or her treatment

  • Consent must be given on a voluntary basis

  • The decision should be based on information about treatment and alternatives, including risks and benefits

Medical providers are first tasked with determining if a patient is capable of making a decision on his own, based on that patient’s mental capacity or overall emotional state. Should there be question surrounding the patient’s ability to make an informed decision, doctors, nurses, or staff should solicit the help of that patient’s representative when discussing possible treatment options. Additionally, consent must be voluntary, meaning influence from the doctor or a patient’s family members, friends, insurers, or caregivers has the potential to void an agreement for treatment. Finally, a degree of satisfaction must be met before consent is valid, based on an open and honest discussion with the patient surrounding the implications – both good and bad – of recommended treatment and alternative options. Once these underlying principles have been met, consent must be documented by the patient and kept in his or her medical record.

When Consent isn’t Valid

The importance of informed consent is not only a staple in the experience a patient has with his or her medical care; it also plays a critical role in safeguarding medical providers from the risk of litigation from a patient who suffered unexpected consequences from a procedure or treatment. According to a representative from a leading medical solicitor firm in the UK, medical providers have a duty to act in the best interest of the patients for whom they provide care, and informed consent is part of the process. Even though there may be time constraints or other outside factors that make the consent discussion seem like less of a priority, receiving consent from patients protects doctors, nurses, and their staff from the damaging, long-term effects of a lawsuit or negligence case after the fact.

There are several common law cases that point to the ramifications of patients not providing informed or otherwise valid consent, including:

Montgomery v Lanarkshire Health Board (2015): In an appeals case brought by Mrs. Montgomery, a type 1 diabetic, it was found that the doctor did not share the increased risk the patient had for shoulder dystocia during vaginal delivery of her child. Because she was unaware of these risks, she opted not to have a Caesarean section, and the newborn was deprived of oxygen during birth which led to a diagnosis of dyskinetic cerebral palsy. Had the patient been made aware of the risks by her doctor, she would have chosen to have a Caesarean.

Chester v Afashar (2004): Ms. Chester brought a claim against a surgeon who failed to warn her of the foreseeable risk of surgery for a lumbar disc protrusion. Chester was left partially paralyzed after the operation, and the doctor was found to be negligent in not providing material information regarding the risks of the treatment.

St George’s Healthcare NHS Trust v S; R v Collins and others, ex parte (1998): A patient diagnosed with pre-eclampsia who required an induction of labor refused treatment. The patient was competent, but she was detained for a mental health assessment because of her refusal and a Caesarean section was performed. In an appeals case, the court found that the patient’s right to autonomy had been violated, the detention unlawful, and the Caesarean was based on false and incomplete information.

In each of these common law cases, informed consent, although murky, came to be a significant aspect of treatment provided to each patient. Time and time again, courts determine that the process of gaining informed, valid consent is a necessary component of receiving high-quality care, and the medical providers who take liberties with patients by not informing them of the associated risks of treatment or alternatives to treatment are left to pay the substantial cost.