Introduction
What is medical consent?
Medical consent or informed consent is the procedure where a medical professional provides detailed information regarding any medical procedure, its side effects, benefits, and any alternative solutions if any. For example: in chemotherapy, doctors usually ensure patients sign consent forms that allow them to freely conduct medical procedures and not attract any legal repercussions if there are any negative side effects or possible death resulting from said procedures. In addition to this, the patient needs to qualify for certain criteria to be able to sign these consent forms or give their consent. What are these criteria? What happens in the case where minors are involved? How does one distinguish between parental rights and child autonomy? Let us learn more about this with the help of this article.
“Informed consent is both an ethical and legal obligation of medical practitioners in the US and originates from the patient’s right to direct what happens to their body. Implicit in providing informed consent is an assessment of the patient’s understanding, rendering an actual recommendation, and documentation of the process. The Joint Commission requires documentation of all the elements of informed consent “in a form, progress notes or elsewhere in the record.” The following are the required elements for documentation of the informed consent discussion: (1) the nature of the procedure, (2) the risks and benefits and the procedure, (3) reasonable alternatives, (4) the risks and benefits of alternatives, and (5) assessment of the patient’s understanding of elements 1 through 4.”[1]
There are various exceptions in obtaining consent as well. Someone who is experiencing a sudden heart attack needs to be hospitalized immediately as such one cannot sit about and explain consent forms to a patient. Legal guardians or parents are morally obligated to always make medical decisions completely founded on their child’s best interests. However, there are various instances when this does not happen. If you have seen the movie My Sister’s Keeper, you might have an idea, that there are real-life instances where parents more often than make medical decisions concerning their child on their wishes and well-being. It is a doctor’s duty as well as any other reliable authority, or the court or an ethics committee to decide in a patient’s good interest especially a minor and impartially protect their rights.
In situations like the second case above, where the parents’ refusal or consent to a certain treatment is clearly in conflict with the child’s best interests, the doctor should offer adequate explanations and make the parents aware of the consequences of their decision so they can eventually reach an agreement.[2] In cases where a patient cannot exercise this right due to his or her limited ability to make medical decisions – a condition referred to as lack of capacity – a qualified person will proceed to make such decisions as the patient’s surrogate based on his or her best interests.[3] In order to exercise patients’ autonomy and preserve their integrity throughout a particular course of treatment, they need to possess the appropriate capability and decisional capacity.[4] A patient’s decision-making capacity can only be assessed in light of his or her specific condition, including the nature and degree of potential risks.[5] Assessment of decision-making capacity is influenced by the challenge between the right to autonomy on the part of the patient and principles of beneficence and non-maleficence on the part of the physician as well.[6]
“In Canada, the age of maturity is 16, although a younger patient’s consent may be considered valid under specific circumstances, where his or her physician and another independent and legally qualified medical doctor verifies the patient’s capacity and the necessity of the procedure based on the patient’s best interests. In the American legal system, the age of maturity is 18, while youths under 18 cannot make healthcare decisions without their parents’ consent. One exception, however, is the case of emancipated minors; these are youths under 18 that have obligations similar to adults, that is, they are financially independent, are married or have children, are enlisted in the military, or have been granted the status of adulthood by a court order. Additionally, youths under the age of 18 generally have limited rights to make certain medical decisions independently, for instance regarding treatment for sexually transmitted diseases, substance and alcohol abuse treatment, blood donation, mental health treatment and family planning services.”[7]
Consent is very crucial in the medical world, that is, without one any medical treatment today will attract critical and ethical issues. It is not rocket science to know that it is important for a patient to give valid consent before any major medical treatment. Patients also have the right to refuse a particular treatment, even if the said medical treatment protects his or her life. This aspect, however, raises many ethical debates that still needs to be settled.
The fundamental principle based on consent and autonomy to make medical decisions was found in the Nuremberg Code of 1947. The Nuremberg Code was implemented instantly after World War II in retort to medical and experimental crimes committed by the German Nazi regime. Similarly, the Declaration of Helsinki adopted by the World Medical Association in 1964 emphasizes the importance of obtaining freely given informed consent for medical research by adequately informing the subjects of the aims, methods, anticipated benefits, potential hazards, and discomforts that the study may entail.[8]
Case Law:
“In Dr. T.T. Thomas vs. Elisa, the patient was admitted into the hospital on March 11, 1974. Upon admission, the patient was diagnosed as a case of perforated appendix with peritonitis requiring an operation. But, unfortunately no operation was done until his death on March 13, 1974. The contention of the doctor was that no surgery could be adhered to, albeit the suggestion, because the patient did not consent for the surgery. Therefore, other measures were taken to ameliorate the condition of the patient, which grew worse by the next day. Although the patient was then willing to undergo the operation, his condition did not permit it. On the other hand, the version of the respondent (i.e., the Plaintiff) was that the doctor demanded money for performing the surgery. Furthermore, the doctor was attending to some chores in an outside private nursing home to conduct operations on the other patients and that the appellant doctor came back only after the death of the patient. The two versions before the court were: 1) the plaintiff (the deceased patient’s wife) said that the doctors concerned demanded a bribe, hence the operation was delayed until it proved fatal and 2) the version of denial for consent. Finally, the court delivered a verdict in favor of the plaintiffs stating that consent under such an emergent situation is not mandatory.[15] It is interesting to note the following observations:
“The consent factor may be important very often in cases of selective operations, which may not be imminently necessary to save the patient’s life. But there can be instances where a surgeon is not expected to say that ‘I did not operate on him because, I did not get his consent’. Such cases very often include emergency operations where a doctor cannot wait for the consent of his patient or where the patient is not in a fit state of mind to give or not to give a conscious answer regarding consent. Even if he is in a fit condition to give a voluntary answer, the surgeon has a duty to inform him of the dangers ahead of the risks involved by going without an operation at the earliest time possible”.
“When a surgeon or medical man advances a plea that the patient did not give his consent for the surgery or the course of treatment advised by him, the burden is on him to prove that the non-performance of the surgery or the non-administration of the treatment was on account of the refusal of the patient to give consent thereto. This is especially so in a case where the patient is not alive to give evidence. Consent is implicit in the case of a patient who submits to the doctor and the absence of consent must be made out by the patient alleging it”.
Finally, as stated above, before holding the doctor liable, the court said that “we also hold that the failure to perform an emergency operation on the deceased on 11-3-1974 amounts to negligence and the death of the deceased was on account of that failure”. This decision makes the entire discussion of consent law more complex. Although this case law can’t be given more accent (because it is a High Court decision), the viewpoint is an interesting one to note. In light of all these developments, it may be concluded that there are many grey areas in this field of consent law in India, which can be eliminated by pro-active intervention by the concerned professional regulatory body.”[9]
CONCLUSION
More often than not, there are clash of opinions between children and their parents. An understandable example: is a seventeen-year-old wanting to not abort a child while her parents want her to pursue her dreams and live her young life instead of taking care of a baby. A common practice for parents to consult doctors on behalf of their children, and this has been followed since one is a toddler! So why not follow this custom all the way through till the child attains the age of majority? The general understanding is that a minor can neither make sound judgement nor comprehend the consequences of such judgement. As such, the need for parental supervision naturally decreases with age. However, what do we do when such parental intermission is not at a child’s interest? Laws are dynamic in nature and ever-changing with times. Hence, the real question is whether we need comprehensive laws that specifically cater to a minor’s right in making medical decisions and also parallelly exercise parents’ obligation which does not diminish the child’s right.
In the context of medical treatment, patients must generally give their informed consent prior to medical care. On one hand, it is impractical for patients to give absolute informed consent given the complexity of medical treatment and the need for physicians to react to uncertainties during operations. On the other hand, courts will hold physicians liable for battery, among other potential torts, if they clearly exceed the patient’s consent for treatment. For example, in the famous Minnesota Supreme Court case Mohr v. Williams, the court found a physician liable for assault and battery when, in an operation to perform on the patient’s rights ear, he discovers that the left ear has a more serious ailment and improperly exercised his discretion to perform on the left ear instead. Additionally, in some situations, such as emergencies or legal guardianship, the individual may be unable or legally incompetent to give informed consent.
Waiver of Constitutional Rights: A person may need to give their informed consent prior to waiving their constitutional rights. For example, in the context of constitutional protections of criminal procedure from the Fifth Amendment, a person accused of committing a crime cannot give up his constitutional rights — for example, to remain silent or to talk with an attorney — unless and until he has been informed of those rights, usually via the well-known Miranda warnings.”[10]
[1] Informed Consent - StatPearls - NCBI Bookshelf (nih.gov) [2] Informed consent, parental permission, and assent in pediatric practice. Pediatrics. 1995;95(2):314–7. [PubMed] [Google Scholar] [3] Parsapoor A, Bagheri A, Larijani B. Patient rights in Iran. Med Ethics Hist. 2009;27:39–47. [Google Scholar] [Ref list] [4] In order to exercise patients’ autonomy and preserve their integrity throughout a particular course of treatment, they need to possess the appropriate capability and decisional capacity [5] A patient’s decision-making capacity can only be assessed in light of his or her specific condition, including the nature and degree of potential risks [6] Larkin GL, Marco CA, Abbott JT. Emergency determination of decision-making capacity: balancing autonomy and beneficence in the emergency department. Acad Emerg Med. 2001;8(3):282–4. [PubMed] [Google Scholar] [Ref list] [7] Iran J Pediatr, Autonomy of Children and Adolescents in Consent to Treatment: Ethical, Jurisprudential and Legal Considerations, 2014 June, Parsapoor A, Parsapoor MB, Rezaei N, Asghari F. Autonomy of children and adolescents in consent to treatment: ethical, jurisprudential and legal considerations. Iran J Pediatr. 2014 Jun;24(3):241-8. PMID: 25562015; PMCID: PMC4276576. Retrieved fom: Autonomy of Children and Adolescents in Consent to Treatment: Ethical, Jurisprudential and Legal Considerations - PMC (nih.gov) [8] 1964. Declaration of Helsinki. [Ref list] [9] Nandimath OV. Consent and medical treatment: The legal paradigm in India. Indian J Urol. 2009 Jul;25(3):343-7. doi: 10.4103/0970-1591.56202. PMID: 19881130; PMCID: PMC2779959. Retrieved from: Consent and medical treatment: The legal paradigm in India - PMC (nih.gov) [10] informed consent | Wex | US Law | LII / Legal Information Institute (cornell.edu)
