I’m often asked, what is the number one medico-legal thing health professionals should know about?

The answer is ‘informed consent’.

The reason for this comes down to the numbers. There are around 150,000 health professionals in New Zealand providing hundreds of thousands of health services every day. Every single time, the health professional must have ‘legal authority’ to provide the service. If there is no ‘legal authority’, the service will be unlawful.

If something is ‘unlawful’, that’s a problem for everyone. It’s a big problem for the health professional – who could face investigation or professional disciplinary proceedings. It’s a big problem for employers of health professionals – who are typically legally responsible for the actions of their employees. And, perhaps above all, it’s a big deal for the patient or client – whose rights will have been breached.

What is the ‘legal authority’ the health professional needs to ensure the services are not ‘unlawful’?

In the vast majority of cases the legal authority needed is the informed consent of the patient or the client.

The basics

There are three key words that go to the heart of informed consent, and every health professional should know them.

Competence. Information. Voluntary.

That’s it. But what do they mean, and how do you apply them in practice?

  1. Competence

The patient or client must be competent to make a decision to agree to the treatment or service. This means the person must have the necessary capacity to consent to the treatment or to refuse the treatment.

But how does a health professional know if a patient is competent or not?

Sometimes this one is really easy – and sometimes it’s really hard. If the patient is a lucid adult who clearly understandings the proposed treatment then they will be competent – and you can go to the next stage of the informed consent process.

Conversely, if unconscious, the patient is clearly ‘not competent’. You will need to find some other ‘legal authority’ to treat.

However, there are lots of grey areas. Children and young teenagers can be tricky to assess – as can some older people or those who are developing cognitive issues.

Sometimes people can lose competence temporarily. In one case, a pregnant woman had such a phobia of needles that a court found that her fear and panic made her ‘incompetent’.

  1. Information

The patient must be given sufficient information to enable the patient or client to make an informed choice. This is the ‘informed’ part of ‘informed consent’ – and it can be tricky too.

There are some things which health professionals must tell patients before proceeding. These are set out in the ‘Code of Rights’, a document overseen by the Health and Disability Commissioner.

But the law is never quite as simple as providing an easy-to-follow ‘checklist’.

Patients have the right to receive all the information that a ‘reasonable patient’ in the circumstances would expect to receive – meaning there are many variables to consider each time you give a patient information.

Here’s an example from one leading case.

A reasonable patient might not be expected to be informed about a 1 in 14,000 risk of blindness in an eye as a result of a procedure. However, in this case, the patient was already blind in one eye – which made the risk much more significant to the patient. This patient wasn’t told about the risk – and unfortunately the risk materialised. The court said that the patient should have been told – because she faced total blindness.

  1. Voluntary

The person’s consent or refusal must be given voluntarily and without pressure from any other person.

Sometimes family members can be very forceful and can pressure vulnerable patients into agreeing to something. In one case, the health professionals were found to have breached a patient’s rights for not being alive to the pressure put on an elderly man, by his family, to agree to go into a rest home.

Also, patients must be given adequate time to digest and understand the information – and don’t feel rushed into making decisions. There have been a number of cases where patients’ rights have been breached because the information and discussion only occurred at the last minute before a significant procedure – when the patient really had no choice but to proceed.

How can health professionals, their employers and others minimise risk?

While obtaining consent will be entirely straightforward in the vast majority of health professional-patient interactions, the reality is that things do go wrong.

Health professionals are expected to know about their obligations – and their employers are expected to ensure this is the case.

While health professionals and employers can’t be expected to have a lawyer ‘on the shoulder’ for every interaction, there are a number of ways they can ensure they’re properly informed about their obligations.  The responsibility rests with health professionals, and their employers, to find a way to ensure that this is achieved.

Dr Jonathan Coates, who has a Masters in medical ethics & law and a PhD in health law, is a partner in specialist health sector law firm Claro. Claro recently launched an on-line, e-learning platform called Clarify, aimed at health professionals, offering professional development modules on different aspects of health law including informed consent: www.clarify.co.nz

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