1.0  CAPACITY (COMPETENCE) TO GIVE CONSENT

Informed consent is given only by a person who is capacitous (competent). The following are criteria (tests of capacity) are used to judge whether the patient is capacitous: (a) Understands what the procedure is. (b) Understands the reason for the procedure. (c) Understand the benefits and risks of the procedure. (d) Has the ability of judging and weighing the information before coming to a decision (e) Has sufficient memory to retain information given for a long enough period to enable effective decision making (f) Understands the consequences of refusing treatment

2.0  THE RIGHT OF AUTONOMY

The patient has the right of autonomy which is control of what is done to his/her body. Autonomy is a basic human right that cannot be violated except in exceptional circumstances explained below. No medical examination or medical procedures can be carried out without informed consent of the patient except in cases of legal incompetence. The patient has the purest intentions in decisions in the best interests of his or her life. Others may have bias their decision-making.

3.0  CONSENT FOR COMPETENT ADULTS

Consent can be explicit (oral, written, or non-verbal) or implied. For example a patient undressing for examination implies consent but often this is not enough we need to ask specifically for informed consent as explained below.

The patient must be free and capable of giving informed consent. Pressure on the patient by the family or the healthcare workers invalidates consent. Informed consent requires disclosure by the physician, understanding by the patient, voluntariness of the decision, legal competence of the patient (also called capacity), disclosure of all treatment alternatives and recommendation of the physician on the best course of action, decision by the patient, and authorization by the patient to carry out the procedures. Consent should be properly documented.

The patient is free to make decisions regarding choice of physicians and choice of treatments. Consent is limited to what was explained to the patient except in an emergency. The scope of consent is limited to what the patient agreed to and the procedures cannot exceed that except in emergencies. Consent also has a time limitation. If a long time elapses between consent and the procedure it is better to obtain new consent.

The patient is free to withdraw consent at a later time and this decision must be respected. Refusal of treatment is a human right that must be respected. Refusal to consent must be an informed refusal (patient understands what he is doing). Refusal of treatment should be documented properly. Refusal to consent by a competent adult even if irrational is conclusive and treatment can only be given by permission of the court. A patient who refuses a treatment has no automatic right to demand an alternative and may be more expensive procedure.

Doubts about whether consent was or was not given consent are resolved in favor of preserving life.

In some legal systems spouses and family members do not have an automatic right to consent and a spouse cannot overrule the patient’s choice.

Informed consent is still required for physicians in special practices such as a ship’s doctor, prison doctor, and doctors in armed forces. Police surgeons may have to carry out examinations on suspects without informed consent.

Physician assisted suicide, active euthanasia, and voluntary euthanasia are illegal even if done with the consent of the patient.

2.0 CONSENT FOR INCOMPETENT ADULTS

Three tools are used for consent in cases of incompetent adults who are unconscious regarding starting, withholding, or withdrawal of treatment: a do not resuscitate order (DNR), advance directives and proxy informed consent by the family or any other person with the power of attorney. In some legal systems the family does not automatically have the right to decide unless authorized beforehand. In some cases courts may be asked to intervene and solve the controversy.

A do not resuscitate order (DNR) by a physician could create legal complications and must be used with care.

Consent can be by proxy in the form of the patient delegating decision making or by means of a living will. The living will has the following advantages: (a) reassuring the patient that terminal care will be carried out as he or she desires (b) providing guidance and legal protection and thus relieving the physicians of the burden of decision making and legal liabilities (c) relieving the family of the mental stress involved in making decisions about terminal care. The disadvantage of a living will is that it may not anticipate all developments of the future thus limiting the options available to the physicians and the family.

The device of the power of attorney can be used instead of the living will or advance directive. Decision by a proxy can work in two ways: (a) decide what the patient would have decided if able (b) decide in the best interests of the patient.

In general in cases of incompetence and in the absence of an alternative decision mechanism the physician in charge does what he thinks is in the best interests of the patient. This is particularly relevant in cases of emergencies.

3.0 CONSENT IN SPECIAL CASES

Mental patients cannot consent to treatment, research, or sterilization because of their intellectual incompetence. They are admitted, detained, and treated voluntarily or involuntarily for their own benefit, in emergencies, for purposes of assessment, if they are a danger to themselves, or on a court order. In this case treatment is compulsory.

Nutrition, hydration, and treatment can be withdrawn in a persistent vegetative state since the chance of recovery is low. There is no moral difference between withholding and withdrawing futile treatment.

Labor and delivery are emergencies that require immediate decisions but the woman may not be competent and proxies are used. Forced medical intervention and cesarean section may be ordered in the fetal interest. Birth plans can be treated as an advance directive.

Suicidal patients tend to refuse treatment because they want to die.

4.0 CONSENT FOR CHILDREN

In general parents or persons with parental responsibilities make decisions for children. Competent children can consent to treatment but cannot refuse treatment. The consent of one parent is sufficient if the 2 disagree. Parental choice takes precedence over the child’s choice. Courts can overrule parents. Life-saving treatment of minors is given even if parents refuse. Parental choice is final in therapeutic or non-therapeutic research on children.