What happens when a patient declines care but may not have the capacity to provide consent? What defines informed consent? What are ethical obligations and challenges when providing care to vulnerable patient populations?
New Ethics in Practice articles in JBJS offer thoughtful discussion of such questions and related ethical considerations that arise for orthopaedic clinicians.
- In Capacity and Declination of Care in the Surgical Patient, Lightsey et al. present a case scenario of an orthopaedic trauma patient with alcohol-use disorder and schizoaffective disorder who initially declines proposed surgical treatment and is evaluated for the capacity to make an informed decision. The authors discuss the concept of capacity and key criteria in assessing capacity, and they outline a multidisciplinary approach involving orthopaedic surgery, psychiatry, social work, ethics, and hospital legal counsel. “Caring for a patient with limited or fluctuating capacity presents a variety of challenges, which are further compounded by declination of life-changing care. Proper care for such patients necessitates multidisciplinary efforts to uphold beneficence, avoid maleficence, and respect patient autonomy,” they write. Read the article by Lightsey et al.
- In another recent article, Informed Consent in Orthopaedic Surgery: A Primer, Hershfeld et al. assess the informed consent process, probing 4 questions: (1) What defines informed consent? (2) Can informed consent be objectively measured? (3) What barriers impede adequate informed consent? (4) What legalities are involved in malpractice claims relating to informed consent? “The reasonable-person standard of informed consent may satisfy legal requirements, but physician subjectivity allows for paternalism and loss of autonomy,” they write. “To standardize informed consent, objective measures must be considered. It is advised that providers receive formal training on the informed consent process. With increased physician awareness of barriers to adequate informed consent, patient autonomy can be better preserved.” Read the article by Hershfeld et al.
- In their article Establishing Orthopaedic Standards of Care for Incarcerated Patients: Ethical Challenges and Policy Considerations, Peairs et al. point out that musculoskeletal and connective tissue diseases are the second-most common category of illness among incarcerated patients. The authors explore how the unique setting of prisons and jails impacts the delivery of orthopaedic care to patients, and they apply the ethical principles of beneficence, nonmaleficence, autonomy, and justice in discussing physician responsibilities when caring for patients who are incarcerated. “The correctional health system places surgeons in tension with several principles of ethical health-care delivery,” they say. “It is imperative that, as physician-leaders responsible for improving the care of all patients, the surgical community takes steps to adopt policies that bridge the gaps in care that exist for patients who are incarcerated.” They outline 5 steps toward this end. Read the article by Peairs et al.
I have some reservations about how (at least) 2 of the 3 articles featured here discuss the matter of informed consent, and the issues relating to patient declining proposed treatment.
They failed to explain the basis of informed consent adequately which is the crux of the issue.
I will attempt to explain it here as an amateur.
In English civil law (as opposed to criminal law), tort law relates to trespass by assault, battery or false imprisonment; the claims does not need proof of damage, although if there is proof (ie injury) that can be established from the trespass, the damages from the trespass will be loaded (added).
The physical contact from battery can be defended using evidence of prior consent.
In medical battery, the onus of consent is higher than others, due to landmark cases like Rogers and Whitaker, whereby the consent given (not “obtained” as colloquially described by many in healthcare work) needs to be informed by adequate information highly relevant and individualised to the person involved, this information needs to be understood and consent is given freely without intimidation or duress to proceed as described knowing the availability of alternatives.
Specifically, the issue of informed consent is related to treatment requiring physical contact (for procedures). Conceptually informed consent is not required for the patient to stay with status quo (ie not having the procedure). Medical treatment requiring consumption of medication and following Sep are advice does not really need informed consent, since no physical contact by the healthcare work is required to deliver the treatment, (the patient willingly put the oral medication in their mouth and swallow it, at the recommended time), unless a worker shove the tablets into the patient mouth and made him/her swallow it (that’s battery).
Hence informed consent is not the issue when the patient declined treatment. When the person’s capacity to decide is under question, the issue here is whether person can make an informed choice (under the shared decision making model), not the informed consent (which is only invoked when someone is proposing a procedure or treatment involving physical contact). A person who maybe able to make a informed choice may not necessarily able to give an informed consent (eg wanting to get the fractured fixed so that the bone can heal in a correct position, but not able to under risk and benefit related to an open reduction internal fixation of distal fibular fracture)
Some readers here may think in practical term this makes no difference in how they practise and pragmatically the issues overlap but I beg to differ. Under Beauchamp and Childress’s ethical approach – autonomy, non-maleficence, beneficence and justice, autonomy is overriding to the other three in many cases, hence staying with (as opposed to choosing*) status quo can be a strong clinical inertia to overcome.
* until the choices are made equipoise in the patient’s perception, (s)he will not seriously consider making a decision to choose, delaying that decision meant a default positioning of staying with the status quo of current management, whereas if the patient can actively choose the status quo when making the decision