What Must be Disclosed?

A physician may struggle deciding just how much information to disclose to a patient. There is a fine line between providing enough information to make a patient feel comfortable in their decision and providing an abundance of information that simply causes confusion.

The case of Canterbury v. Spence, 409 U.S. 1064 93 S. Ct. 560 34 L. Ed. 2d 518 1972 U.S., articulated that when it comes to informed consent, a physician must disclose:

(1) The condition being treated;

(2) The nature and character of the proposed treatment or surgical procedure;

(3) The anticipated results from the proposed treatment or surgical procedure;

(4) The recognized possible alternative forms of treatment; and

(5) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including non-treatment.

When discussing the risks of the recommended treatment and possible alternatives, the physician will generally choose to discuss the risks that are particularly important. To do this, two possible standards exist by which the physician should choose to follow – the reasonable practitioner and the reasonable patient. First, the reasonable practitioner standard states that the physician should ask themselves if other doctors in the same field would disclose a particular risk. Second, the reasonable patient standard states that the physician should consider if a normal patient with the same medical history and conditions would have changed his or her mind about the treatment if the risk was discussed.

Next, it is important that the physician knows that simply discussing the six topics mentioned in Canterbury is not enough. The physician also has the responsibility to make certain that the patient has understood the information that was disclosed. The information can be a lot to process for the patient and it is possible that they either did not hear, or process, all of the information.

It is also possible that the patient is not capable of consenting to treatment. For informed consent to be properly obtained, the patient must be considered to be medically competent and able to give consent in a way that they understand the procedure being performed; appreciate the reason for the proposed procedure; and are aware of the risks of the procedure and the expected outcome. If a physician deems the patient to be incompetent, this does not excuse the need for informed consent. Instead, the consent must be obtained from someone authorized within the patient's family.

For legal purposes, in order to make certain that the patient fully understood all of the information that the treating physician provided, an informed consent form will usually be presented to the patient. The form will likely include the information that was verbally conveyed by the treating physician to the patient. Prior to going forward with treatment, the patient must sign the informed consent form, signifying that they understand their diagnosis; the purpose of the recommended treatment; possible alternatives; and the risks and benefits associated.

One exception to informed consent is a state of emergency. There are certain situations where time is of the essence and a physician may not be able to obtain informed consent for a variety of reasons. In these scenarios, it is deemed acceptable for the physician to assume that the patient would give consent to the procedure since the procedure is likely necessary to save the patient's life. For the physician's legal protection, they should generally adhere to the following guidelines when deciding to proceed in an emergency situation without consent from the patient: 1) a true medical emergency exists, 2) the physician is truly unable to obtain consent from the patient or the patient's family, 3) the proposed treatment plan is for the ultimate benefit of the patient.

Informed consent is a nuanced area of medicine where medical treatment meets the law. It is a doctrine that benefits both the treating physician and the patient in that a true plan of action geared towards improving the patient's health is formulated, discussed and agreed to in a manner that makes everyone involved prior to proceeding.

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