The definition of informed consent differs slightly from one discipline to another. The fundamental tenet, however, can be summed up by this from the Legal Information Institute at the Cornell Law School:
An agreement to do something or to allow something to happen, made with complete knowledge of all relevant facts, such as the risks involved or any available alternatives.
The practice of requiring informed consent is relatively new. Until the twentieth century, the field of medicine was dominated by a paternalistic attitude which deemed the physician knew what was best, and the patient was not included in any decisions. It was believed that it was important for a physician to inspire confidence and that disclosing possible risks would undermine that. Medical literature from medieval times documents that doctors were advised to offer hope and a rosy outlook while being purposefully deceitful with in regard to anything negative. The discussion of informed consent finally began to take hold in the early 1900s when the concept of assault and battery began to be applied to injuries suffered by patients during surgery.
The informed consent procedures in place today have gradually evolved based on various legal decisions culminating in a system that is much more patient-oriented. In general, even though specific definitions vary from state to state, and discipline to discipline, informed consent basically means that a healthcare provider must inform a patient of all potential risks, benefits, and alternatives involved in any course of treatment and must obtain the patient’s written consent to proceed. While case law has shown that there will always be exceptions, the underlying principle is that a physician has a duty to disclose and a patient has a right to know all pertinent information so that the patient can make a reasonable decision regarding treatment.
There are many different healthcare areas where informed consent is required, such as general medical, surgery, mental health, research, and testing. Specific requirements and wording will necessarily vary for each. All agree, however, that consent must be preceded by a thorough disclosure of information and that the patient must be capable of understanding and making a voluntary choice with regard to what is being disclosed. Numerous challenges have been brought in court over claims that a patient was denied the ability to make a truly informed decision due to receiving insufficient information or that the healthcare provider failed in providing the information in a manner that was understandable to the particular patient.
General Points Covered by Informed Consent
Before a patient can provide informed consent, there must first be a clear understanding of the relevant facts involved. Some of the basic areas that should be covered include:
- Patient’s diagnosis, if known.
- Nature and purpose of proposed treatment or procedure.
- Possible benefits of proposed treatment or procedure.
- Possible risks of proposed treatment or procedure.
- Alternatives to the proposed treatment or procedure.
- Possible risks and benefits of alternative treatments or procedures.
- Possible risks and benefits of not receiving or undergoing any treatment or procedure.
Informed consent not only safeguards a patient’s decision-making rights but also provides protection for the healthcare professional. This can only be seen as good practice for all concerned.
Eisner Psychiatric and Malpractice Law has the experience necessary to fight for our clients dealing with an informed consent case. We will help you secure the documents you need to prove your case in court.
Feel free to contact one of our attorneys at any time. We want to help get you the justice you deserve.