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Informed consent involves a medical professional making every effort to make certain that the patient understands the benefits, as well as the risks, associated with the treatment or procedure that is being recommended.
Before a patient may give their consent to a treatment or procedure, the following topics must be discussed by the treating physician with the patient.
(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 it comes to a patient giving their informed consent to a proposed treatment or procedure, there are two ways in which the consent may be conveyed – expressly or impliedly.
Express consent is considered to be specific permission that is given by one person to another person. A patient may expressly convey their consent to the treating physician by memorializing their authorization in writing or by expressing consent through voice.
Another way of giving consent is through an act that demonstrates implied consent. Implied consent is an assumption of permission, not specific permission that is inferred from the actions of a person. For example, a patient entering and remaining in a physician’s examination room would likely impliedly convey that the patient is consenting to an examination to be performed by the physician.
When it comes to potential litigation, implied consent is always more difficult for a physician to prove than express consent since implied consent operates on the notion of an assumption.
Regardless of whether the consent provided by the patient was given expressly or impliedly, for the consent to be considered valid, it must have been obtained from a competent patient who understood the procedure to be performed, as well as the associated risks, benefits, complications, and possible alternatives. The consent must have been given under the patient’s own volition and not as a result of threat or duress.
For legal purposes, in order to make certain that the patient fully understood all of the information that the treating physician had provided, a consent form will usually be presented to the patient. The form usually includes the information that was verbally conveyed by the treating physician to the patient during earlier meetings or consultations. 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.
In addition to the consent form, the treating physician should document the process of consent taken by preparing a duplicate and a copy of the topics discussed. One copy should be retained by the physician and the other given to the patient.
It is important to note that the signing of the consent form does not in itself prove valid consent to the treatment that the physician is recommending. Instead, the factors to be taken into consideration will always include the quality, extent and accuracy of the information given beforehand. This serves to protect the patient from being lied to or pushed into a treatment or procedure that they really do not want to undergo.
While all healthcare treatments require some form of consent, there are a few exceptions to that rule. For example, if a patient does not have the capacity to make informed decisions regarding their health, they are not required to give informed consent to treatment since they are not able. In this situation, informed consent must still be obtained by a medical professional prior to going forward with treatment but the informed consent would come from a surrogate decision maker instead of the patient themselves. If time is of the essence and there is an imminent threat to the life of the patient, the medical professional may make the decision for the patient without seeking a surrogate decision maker.
In some situations, a patient may waive consent altogether. If this is the case, the medical professional may proceed without seeking permission or providing detailed information as to what is involved with the treatment.