Chapter 2: Informed Consent

INTRODUCTION

Consent is a phenomenon that happens every day in social transactions. In a tacit and often unaware manner, people defer to someone else’s choice to determine their own conduct (“Here are clothes for you to change into before your x-ray.”—“Sure!” or “Take this pill every morning.”—“I will!”). There are many assumptions in those interactions: that shirt or pants will fit and size is the only variable in question or that the person is able to swallow pills. Because of the many unknown parameters, the result of an interaction where an unaware consent has been given ranges from an enthusiastic “I understand” to an irritated “I don’t like this.” It is important to remember that whenever people consent to someone else’s choices, they are providing an active giving up of control of the decision.

Between 2015 and 2017, US courts heard 916 cases dealing with medical informed consent. Notably, about two-thirds of these cases were unreported,¹ meaning that they replicated previous cases or used two or three courts for the same case. But this is just the tip of the iceberg because the majority of legal conflicts are resolved through conversation, direct payment, negotiation, legal mediation, insurance company intervention, or simply abandonment by the affected party.² None of these out-of-court methods provide a learning experience to other practitioners because they do not result in a published, public judicial opinion. Thus, the number of published cases does not reflect the significant physician, attorney, and court time that is used to resolve problems regarding informed consent, and the need for informed consent is still often treated by most practitioners as an irritation.

Legal conflict regarding informed consent is considered to be a type of medical malpractice claim.³ Because most of these cases are resolved privately in mediation⁴ and most legal decisions are not published, only a tiny fraction of this unpleasant legal experience is used to teach peers in order to improve their medical practice. Practitioners could do well by learning from others’ errors and improving their own methods of obtaining informed consent.

INFORMED CONSENT IN MEDICAL CARE

Informed consent deals with a specific subarea of consent, where certain terms of the verbal or written exchange between doctor and patient are clearly specified because it is thought that such terms are important (“Here are clothes for your x-rays. Are you very cold?” — “Yes, I need a blanket.”; “Take this pill every morning. Can you swallow pills?” — “No, I choke on them. Do you have the medicine available in a syrup?”).

In the health care environment, such as cancer care, any consent must be made open and explicit rather than tacit and implicit. The reason for the extra care is that the cost of misunderstanding in health care settings is too high because it may result in the patient’s death. Before the ...