Another primer on informed consent (Proceedings)

In many veterinary practices today, obtaining informed consent consists of the receptionist placing a consent form in front of the client and telling the client they need to sigh the form so the doctor can perform the surgery or treat the animal. In my presentation today, I want to emphasize the importance of informing the client rather than simply obtaining the client's consent.

History of Informed Consent

The doctrine of informed consent arose centuries ago in the common law. Doctors, lawyers, and other members of the "Learned Professions" were thought to have knowledge that was beyond the understanding of the average person. This knowledge was often referred to as the "mysteries of the learned professions." At that time, most people had a broad general knowledge of most of the areas that affected their lives; they knew how to build a house or barn, how to repair their wagons, how to make clothes, how to raise livestock and prepare it for consumption, etc. Since the average person was not expected to know and understand the "mysteries of law and medicine the courts imposed a special duty, the duty of informed consent on the members of the learned professions which required them to inform their clients and patients of facts concerning their medical care, legal representation, etc.

The Reasonable Practitioner Standard

The reasonable Practitioner Standard is set forth in Karp v. Cooley, 493 F.2d at 411 (5th Circuit, 1974). This standard requires a physician to disclose facts that a reasonable medical practitioner in a similar community and of the same school of medical thought would have disclosed regarding the proposed treatment. This used to be the accepted standard in most jurisdictions, but has fallen from favor in recent times. It is a rather paternalistic approach which assumes that the doctor will decide what the patient needs to know in making medical decisions. This standard has fallen from favor as patients and clients become more knowledgeable concerning medical care and want to take a more active part in determining medical care for themselves and their animals.

The Reasonable Patient Standard

The reasonable Patient Standard is articulated in Canterbury v. Spence, 464 F.2d 772 (D.C. Cir 1972). This standard requires a practitioner to disclose all risks that would be material to a reasonable, prudent person in the patient/client's position. A "material risk" is a risk that, if known, would cause the patient to alter their consent. Under this standard the practitioner no longer decides what he or she thinks the patient/client needs to know, but must disclose what a reasonable patient or client would want to know. This is a step away form the paternalistic approach of the Reasonable Practitioner Standard and is the standard applied in most jurisdictions today. This standard recognizes that clients today are more informed of medical issues and want to be more involved in the medical decisions regarding themselves and their animals

The Individual Patient/Client Standard

The Individual patient/Client Standard comes from Scott v. Bradford, 606 P.2d 554 (Okla. 1979), an Oklahoma Supreme Court decision. Under this standard, the practitioner must determine what risks are material to the particular patient or client h or she is dealing with and disclose those risks which are material to that individual. This is the most demanding standard on the practitioner and has not found favor in many jurisdictions. However, even this highest standard can be met by asking the question, "Do you have any more questions?"

Lawyers are familiar with the phrase, "What else?" When an opposing party is asked to list something, such as all the ways in which they have been harmed by another person, when the person appears to have finished their response the careful attorney will always ask, "What else?", and will keep asking until the person says, "That's all." In the same way, the person obtaining the informed consent should always keep asking, "Do you have any more questions?" until the person replies, "No."

What Must Be Disclosed

The person obtaining the informed consent must disclose the following to the person giving the consent:

     1. The diagnosis or nature of the patient's ailment.

     2. The general nature of the proposed treatment and the purpose or reason for the treatment.

     3. The risks or dangers involved in the proposed treatment.

     4. The probability or prospects of success.

     5. Alternative treatments or procedures along with the risks associated with those alternatives.

     6. The prognosis or risk if no treatment or procedure is performed.

     7. In veterinary medicine, discussion of costs of the various alternative treatments.

Many "practice development" speakers and writers today advocate recommending to the client the highest level of treatment for any condition found in an animal presented for treatment. Such recommendations are justified as providing "quality medical care". Although such recommendations may increase the income of the practitioner, this practice does not provide the client with proper informed consent. A client cannot provide proper consent for a particular treatment when they have not been informed of alternative treatments, as well as the risks and probable outcomes of those alternative treatments.

Who Should Obtain Consent

Practitioners often want to know who should obtain the informed consent of the client before treatment of surgery. Usually their real question is how low on the totem pole the person obtaining the consent can be and the practitioner still be protected. The Golden Rule of informed consent is that is should always be obtained by the doctor. However, it is probably acceptable to say that the consent may be obtained by anyone who is familiar enough with the all the alternative procedures to answer the client's questions.

This may vary with the procedure involved. If the animal is presented for an ovario-hysterectomy, a procedure with well-recognized risks and few alternatives, a technician or possibly the receptionist may b able to answer the clients questions and obtain informed consent. At the other end of the spectrum, the doctor is probably the only person who can obtain informed consent for a comminuted, compound fracture of the humerus. It is likely in that situation that the doctor is the only one familiar with the risks of infection, non-union, etc., as well as with the alternative procedures of plating, pinning, casting, amputation, etc. to be able to fully describe the risks and alternative treatments to the client.

As mentioned above, the person obtaining the informed consent should always ask, "Do you have any more questions?" and should also ideally ask, "Would you like to speak with the doctor?"

Use of the "Form"

An informed consent "form", standing alone, is of little value. Remember, it is not the form, it is the consent that is important. An informed consent form should simply document and summarize the information that has been provided to the client by the doctor or the staff. The person obtaining the informed consent should first cover all the areas listed above under "What Must Be Disclosed." Clients often so not know what questions to ask, or even if they have questions, until they are provided with some information concerning the risks and alternative procedures. Then use the magic phrase, "Do you have any more questions?" Only after this dialogue has occurred should there be any consideration of signing a form.

I would offer two general suggestions when disclosing risks and alternatives to the client. First, use common terms. If the possibility of death exists with the treatment or surgery state that the animal might die, not that there may be an "adverse outcome". Second, use accurate terms. Many clinics now refer to general anesthesia as "sedation". Sedation and anesthesia are not the same thing and should not be used interchangeably. We justify such usage by saying we do not want to be harsh, when in reality we are trying to minimize the appearance of risk. Such minimization of the risk will be regretted when the client in a law suit says they were not accurately informed of the risks.

Conclusion

Informed consent is dependent upon the veterinary practitioner providing enough information to the client to allow the client to consider all options before giving consent for a treatment or procedure. The consent form is merely a tool to guide the person obtaining the consent and will provide some evidence of informed consent if litigation arises.