Journal of the New Zealand Medical Association, 10-October-2003, Vol 116 No 1183
At last – some reasonable comments on informed consent
Ron Paterson has exploded some well-worn myths about informed consent in his helpful article published in this issue of the NZMJ.1 In fact, the essence of Paterson’s advice is found in the Hippocratic writings:
‘Although it were no easy matter for common people to discover for themselves the nature of their own diseases and the causes they get worse or better, yet it is easy for them to follow when another makes the discoveries and explains the events to them’.2
He has reaffirmed the fact that one does not have to be a communication guru or a mind-reader to satisfy the requirements of New Zealand law, which are among the clearest in the world on this issue. We are required to speak in a way that is honest and open about what we are doing, but that has been a hallowed and non-negotiable principle in all cases since the early twentieth century. We are also required to give the patient a sufficient basis on which to believe and trust us by being open and honest about the patient’s problem, its likely course, and what we can hope to achieve to influence that for the better. Again, this is no more than any one of us would expect from any reasonable professional or tradesperson with whom we were dealing. A key concept here is that of ‘material risk’: the risk that would be taken into account by a reasonable person in making the decision in question.
Again, the Hippocratic writings demonstrate a clear understanding of the patient’s predicament:
‘Physicians come to a case in full health of body and mind. They compare the present symptoms of the patient with similar cases they have seen in the past, so that they can say how cures were affected then. But consider the view of the patients. They do not know what they are suffering from, nor why they are suffering from it, nor what will succeed their present symptoms. Nor have they experience of the curse of similar cases. Their present pains are increased by fears for the future.’2
When we consider conveying such information we are reminded that we need to share the information that a reasonable person in the patient’s position would want to know (the reasonable patient test), and that we must answer honestly any questions posed by the patient before us (reaffirmed by Rogers vs Whitaker).3 These questions, among other aspects of the conversation, should indicate to us the kinds of considerations that the particular patient before us would consider relevant to the decision he or she is facing. Once again, all the legal precedents are convergent on these simple points.
I have always taught that the requirements for informed consent can be summed up neatly by breaking the process into spontaneous and responsive phases. We must spontaneously volunteer the information that a reasonable patient would want to hear (an objective standard) and responsively disclose what this particular patient would want to hear (a subjective standard). The former process can be assisted by information sheets and printed material, including pictures, but the latter requires a conversation. Neither is so time consuming as to be prohibitive and both can usefully be achieved in a way that does not convey any pressure to the patient. Almost always the surgeon performing the operation must be involved in at least part of this process, even if the form itself is signed in the presence of a junior who can provide an opportunity for the patient to share any concerns that would not be aired in the presence of his more powerful, and perhaps intimidating, colleague. Of course, that will not work if the junior is likewise so overawed by the specialist that he is too inhibited to make the patient feel at ease.
If we act so as to take these requirements seriously, we have, as Paterson assures us, nothing to fear from the complaints process, where common sense and a sharp eye for the clinical reality are very much in evidence in recent cases.
In reality we are best served by treating the patient as a partner (in the words of the British Medical Journal). A partnership involves respect and trust and a commitment to cooperative problem solving, and that, I think, is the essence of all good clinical relationships. What continues to amaze me is that doctors, and particularly specialists, who are sensitive to the quality of evidence adduced and the reasoning based on it in making good medical decisions, are often cavalier or downright sloppy in their use of ethical and legal evidence and reasoning in their clinical thinking. Paterson’s article is a worthwhile antidote to that kind of approach.
Author information: Grant Gillett, Neurosurgeon and Professor of Medical Ethics, Dunedin Hospital and Otago Bioethics Centre, University of Otago Medical School, Dunedin
Correspondence: Professor Grant Gillett, Otago Bioethics Centre, University of Otago Medical School, PO Box 913, Dunedin. Fax: (03) 474 7601; email: firstname.lastname@example.org
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