The Ins and Outs of Informed Consent: What Are Patients Entitled To?
Informed consent to medical treatment in Ireland, and other places across the world, is an ethical right afforded to its citizens. But what does all this mean?
If you need to undergo a surgery, be vaccinated, require a blood transfusion or any other medical procedure, the medical professionals responsible for performing it need to get your informed consent. Without informed consent from the patient, any medical work carried out on you could be cause for a medical negligence claim.
Patient consent isn’t as simple as a doctor asking if you want a procedure to be performed and you telling them it’s okay.
To help you understand the complexities of informed consent, we’re going to discuss what it is and what your rights are if you find yourself in this position. Then, we’ll discuss the benefits and drawbacks of informed consent, so read on to learn what you’re entitled to.
What is Informed Consent in Healthcare?
Informed consent law varies from country to country. In this post we’re going to focus specifically on Ireland but many of the rules here will be applicable in other parts of the world.
The general principle of informed consent is where the patient consents to a treatment with sufficient knowledge of what it is and the potential risks and benefits. The patient must also have the capacity to make the decision themselves, free from threat or pressure from others.
The consent can be given either in writing, verbally, or it can be implied. There is no legal mandate in Ireland for the consent to be in writing. To give you an idea of when informed consent is necessary, here are a few scenarios:
- Most surgeries
- Blood transfusions
- Some advanced medical tests, such as a biopsy
- Most vaccinations
- Some blood tests, such as HIV testing
If There is No Consent?
If your doctor carries out a medical or surgical procedure without your informed consent, they could be charged with assault by the Director of Public Prosecutions.
They could also be sued for the tort (civil wrong) of trespass to you and sometimes for the breach of constitutional rights. And finally, you could sue them for medical negligence.
This action can be taken even if you did give the doctor consent, if you can prove that you were not informed of what the procedure was or the risks and benefits. Without that information, your agreement might not be considered ‘valid consent’.
When is Informed Consent Taken Out of Your Hands?
Unfortunately, you’re not always able to give informed consent on your own behalf. Below is a list of situations where this could take place.
If you’re a mentally competent adult, it’s clear that you can give informed consent about what treatment you do or don’t want.
However, there are situations where you give implied consent out of necessity. For example, if unexpected complications arise during an operation, the professional who’s conducting it might have to fix it with another treatment on the spot.
In that same vein, if you are seriously ill and are not in a position to give consent, the doctor will likely take it upon themselves to carry out procedures arising from necessity. Some doctors might even consult your family, but they don’t have any legal right to give informed consent on your behalf.
If you’re not mentally competent, you are unable to make a decision about the medical treatment you do and don’t want.
It’s not clear exactly how your mental competency is measured, nor who is capable of making decisions for you when you’re in this state. However, generally a medical professional makes the decision for you at the time.
Anyone below the age of 16 doesn’t have informed consent. It is the job of doctors and other medical professionals to get the consent of a parent or guardian to perform medical procedures on minors.
Once the minor reaches the age of 16, they are able to give valid consent to medical, surgical and dental treatment.
Why is Informed Consent Important?
Now that you have an understanding of what informed consent is, when you’re able to use it, and when you’re unable to, it’s time to explain why it’s important to have it.
Ethical Principles of Autonomy
The reason informed consent exists in the first place is to give people rights over their own lives. It is up to each individual patient what they want to do with their own body, whether it’s an agreed course of action by the medical profession or not.
It is up to the patient to balance the potential risks and benefits of different procedures and make an informed choice on what happens to their own body. This choice is recognised in Irish case law, the Constitution, and international and European human rights law.
Informing the Patient of the Risks
Some opponents of the right to informed consent have argued that informing the patient of a procedure and having them sign a consent form wastes a doctor’s valuable time.
The issue with this argument is that if a patient doesn’t know what procedure they’re undergoing, they won’t be aware of the potential risks of the operation. They also won’t be able to decide whether the procedure sounds right for them and seek a second opinion.
Essentially, without informing the patient of their procedure, the doctor will decide what’s best for the patient and is able to withhold information from them.
The Patient Knows Themselves Better Than Anyone
Acquiring informed consent is the only way to allow the patient to use the knowledge they have of themselves when making a decision whether or not to go through with a procedure.
Your doctor has a list of your medical history, but they don’t know you personally. Medical history only gets you so far, as it’s only the list of procedures and treatments you’ve had in the past. However, it includes nothing about day to day problems you have that you may have never talked to a doctor about.
Informing the patient of the procedure opens a dialogue between patient and doctor, where the patient might have information vital to whether the procedure is right for them or not.
Are There Any Issues with Informed Consent?
Obviously, there are two sides to every coin and informed consent has its problems. Here is a short list of when informed consent doesn’t work in practice.
The law around mental incapacity is difficult to pass because it’s not always easy to interpret whether someone is of sound mind when they consent to a procedure. This means that, in some cases, people will agree to a procedure without actually knowing what they’re agreeing to.
Most of us know how Jehovah’s Witnesses refuse to receive a blood transfusions due to their faith. In cases like this, patients can die based on their beliefs as opposed to listening to the risks and benefits of the procedure.
Doctors are primarily tasked with saving people’s lives so, in a dilemma like this, where a patient refuses to have a procedure due to something extra-medical, informed consent doesn’t work.
There are instances where a patient doesn’t fully understand what the procedure will entail due to language barriers and low health literacy. If the patient speaks another language and wires are crossed, they could make a decision on a false expectation of what they thought the procedure would be.
The same goes for someone with low health literacy who might claim to understand the risks and benefits of the procedure, but actually doesn’t.
Do I Have to Use Informed Consent?
Today, we’ve managed to cover a lot of ground. We now know what informed consent is, when it is and isn’t applied, why it’s important, and situations in which it doesn’t work.
If you’re in a situation where you’ve been asked for your consent by a doctor, make sure you know exactly what the procedure is and what the risks are. Most people understand that they aren’t medical professionals themselves, and agree to the procedure based on the doctor’s recommendation.
However, if you don’t want to undergo a procedure because it’s too risky, or you want a second opinion, you’re well within your rights to do so and the doctor cannot force you. We hope you’ve learned something new, and good luck with your future medical treatments.
*All Images by Mohamed Hassan from Pixabay
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