The union of nurses and midwives raised several complaints in their regard. Obviously in hospital, work conditions can be dire especially when staff decrease. It seems that gone are the days when nurses used to divide their night duties and one would see half the staff resting while the other half working. However I wish to concentrate on an important point raised during their meeting: that of obtaining consent before an operation. The news tended to be short in this regard but I seemed to have caught this phrase. In any case it would be timely to discuss the issue.
It is reasonable that the responsibility in obtaining consent is so great a burden, that nurses may feel that this is legally beyond their call of duty. Indeed if they are to carry it out, they must properly be called nurse practitioners in this area. One never tires of writing on this important topic and indeed it takes two whole lectures to cover the process with students. It cannot therefore remain simply a paper which the patient never reads and signs before he or she is taken into theatre for a procedure. I know for a fact that many responsible consultants carry out the process quite well; but I continue to hear from my own patients that they were never really told what the risks are, for example, of anaesthesia.
Do patients have a right to know? Or should we continue with the former, rather paternalistic, attitude, that it is better that people do not know details which may cause them alarm and indeed refuse to have the procedure done? Both sides of the argument have their defenders, but unless the patient expresses a wish not to know and autonomously decides to leave himself or herself in the hands of the health care team, then today’s interpretation of rights, leaves no space, under tort law, where patients can be left in the dark about important and perhaps not so important details.
So if it is negligent simply to present a paper to a patient to sign we must see what we mean by autonomy, informed consent, and indeed what is on that small sheet, which presumably is there to cover the hospital authorities if anything goes wrong. Starting with the latter, this is not what the consent form is supposed to do. Indeed it is wrong to call it a consent form in the first place. The term ‘informed consent’, presumes that you have gone through a process, which takes more than five minutes, of giving relevant information to patients. Conditions also apply. It is indeed a false sense of security, as we shall see, when a patient signs a form – especially if he or she is already on a stretcher, or already in a surgical gown – at the last moment. If something goes wrong, a lawyer will enjoy a good breakfast by proving that the patient did not and indeed could not have acted autonomously. If there was no autonomy, the consent process was invalid.
Autonomy is a process by which a person has the jurisdiction to act on behalf of his or her own body. For autonomy to be valid, one must show that there was an intention on the part of the patient to act in the way he/she did; that there was a clear understanding, and that there were no controlling influences. Thus if a relative forces someone to act in a certain way, autonomy is put into question. But this is only the beginning. We must then go through the process of informed consent. This has several conditions, the first of which is of course actually giving the patient enough information to be able to make a choice. If I am an autonomous person, and am not given enough information, even though I was capable of acting autonomously, I have nevertheless failed to do so. No consent form is valid without my being empowered to sign it.
The question inevitably arises: what amount of information should I give to a patient? While cultural issues do come into play – for example, while it has been shown that Nordic countries have a more stringent protocol and insist that all information available be given to the patient, Southern European countries tend to be more conscientious not to burden the patient. Yet this does not exempt a proper process from taking place.
We must insist therefore that at a minimum, the information that a reasonable person would want to know, be given. The most important of course are the risks, and it takes some training to be able to give information about risk, without being coercive or manipulative, unintentionally. We may easily brush off information so as not to put the patient off; in reality we may also be afraid of reprimands from superiors if the patient decides, based on the information given, not to go forth with the procedure. I have personally witnessed a nurse being reprimanded for this. Indeed what is the process all about if not to leave a surviving chance for the patient to exercise his or her right?
Sometimes even the information of what a reasonable person would want to know, is not enough. Therefore it may not be enough to inform patients of possible complications. Some people want to know more and therefore specific patient standards are appropriate. These may be proper for a particular group of patients, especially vulnerable groups, or indeed for individuals who insist on knowing more. The latter does not mean that the patient is not a good candidate for the operation. It may be simply that there is some doubt or anxiety. We often forget that the hospital experience is an alien land for many people. A kind word goes farther than a comprehensive list of information.
Other conditions apply. Is the patient really understanding what is being said? Anxiety or indeed the effect of drugs or a fever may affect this. It goes a long way to explain that taking consent (as I would definitely not call it consent) at the last minute, without at least reading what the patient is signing, is not the correct way of doing this. I actively ask patients, and indeed relatives who have gone through procedures, how consent was taken. Some do not even recall the process other than having signed a sheet when they were about to be taken for a procedure. Others say that they were quite satisfied when the doctors explained everything in the outpatient department.
Indeed this is where the process should be done, unless we are dealing with an emergency, in which case even the whole informed consent process may be waived in order to save the life of the patient. At outpatients, we are dealing with a person not yet in his pyjamas. The patient is less vulnerable, less anxious and still has time to go home and reflect. When an operation carries even a very small chance of death, one has to reflect on his or her life choice. Some are more courageous than others and certainly it is not the professional to make that judgement or call. Is the patient making a voluntary choice? Is he being pressured by someone in the family? Has he been given the correct information; enough to make a valid judgement? Finally, is the patient competent? Children, for example often have their choices made by parents, but it is becoming clearer that even children may make a valid choice on their health care. Paediatricians are aware of forceful parents or undue pressure which can be put on children.
The actual giving of consent is a final and important process. Signing a paper is perhaps something which legal advisors require. It is important to appreciate that it carries with it a false sense of security, since, as we have seen, any flaw in the above process may render it invalid.
To return to our argument therefore one may legitimately validate nurses’ complaints of taking such a huge responsibility. They do it on a presumed informed consent process having been given to the patient already. Clearly a protocol would go far to remedy this situation, even if it may take some time to implement. A hospital ethics committee, a much needed part of our infrastructure, would bring consultants and those involved together to formulate a safe way forward in this regard.
There is no doubt on the excellent service we offer; it is a pity that such an important process, which omitted can leave one liable to negligence if a harm were to occur, is often taken lightly. While one is aware that such blank statements may leave those who do indeed go properly through the process offended, I humbly submit this is not oriented to them. It is a fact however that the practice is also widespread and it would be negligent as well to try to defend what is wrong. It is a duty of health care professionals to go through the process of informed consent. They cannot rely on each other. A protocol may be necessary.
It is important to realise that harm may simply be the omission of this proper process taking place. One should not take lightly what is being pointed out by the professionals themselves.
Pierre Mallia is Associate Professor in Family Medicine, Patients’ Rights and Bioethics at the University of Malta; he is also Ethics Advisor to the Medical Council of Malta.