Principles of Surgical Consent

1. Principles of Surgical Consent Dr Felicity V Connon Surgical HMO

2. Why Consent? • Manifestation of respect and protection of patient autonomy • Rogers vs Whitaker • Chester vs Ashfar • Process not an event • “Informed consent” is a legal obligation • No consent = assault/clinical negligence

3. Process of Informed Consent • Does an intervention require consent? • Yes • Invasive procedures – done awake, LA, GA • No • Minor procedures eg. IVC, IDC, NGT  verbal • Prove/ be satisfied with capacity • Obtain consent • Provide appropriate information • Allow them to make the decision  coercion is not acceptable • Record consent

4. Presenting Information • Information that must be provided: • The purposes and details of the Ix/procedure • Details/uncertainties of the diagnosis • Options for treatment and the likely prognosis (including the option not to treat) • Explanation of the likely benefits and risks and of probabilities of each • That the patient can change their mind at any time • Answer their questions

5. Formal Evidence of Consent • Consent Form • Progress notes • Signed consent/written consent is mandatory for legal reasons in hospitals in Australia. • Written evidence of consent = medical indemnity

6. Capacity • The patient must be able to: • Comprehend the given information • Retain the information • Appreciate the nature and purpose of their treatment and the consequence of giving or refusing consent • Consider the information rationally to arrive at a decision • The assumption is normally made that adults have legal capacity • If they do – no other consent needed • Difficult = children, mentally incapable, emergencies

7. Children • If the child is under age or lack capacity, parents have (joint) legal authority to make treatment decision. • Mature minors • Gillick competence • Parental refusal can be overridden by court order if not in child’s best interests (child protection legislation)

8. Emergencies • May treat without consent if: • Injury is life-threatening or poses severe imminent threat to the patient’s health • The patient is not able to give consent and and a substitute is not readily available

9. Mentally Incapable • Impairment may be temporary or permanent • Assessment of capacity is functional - specific to issue in question • Not automatically lacking capacity because of diagnosis (eg. dementia, psychosis, etc. ) • Refusal of treatment others see as beneficial or necessary does not imply incompetence • Testing: • Neuropsych • Psychiatry

10. Options • Chase the hierarchy • EPOA • A person/guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT) to make decisions about the proposed treatment • An enduring guardian with appropriate powers appointed by the patient • The patient’s spouse or domestic partner • The patient’s primary carer • The patient’s nearest relative over the age of 18 • No responsible person  Section 42K of the Guardianship and Administration Act 1986 to the Office of the Public Advocate (OPA). • Psychiatric issues  Section 10 (MHA) • Medical Executive

11. References • Consent in Surgery, Review, R.Wheeler, Annals of the Royal College of Surgeons England (2006) 88: 261-264 • A Review of Surgical Informed Consent: Past, Present and Future, Leclercq et al, World Journal of Surgery, (2010) 34: 1406-1415 • RACS Informed Consent Policy, Policies and Procedures Manual, Fellowship and Standards Division