Exceptions to informed consent
Emergencies. Informed consent is not required under some circumstances.5 Consider the patient who is brought to the emergency room unconscious after a fall, with no family contact information. A neurosurgeon might need to intervene immediately to save the patient’s life, using the emergency exception to informed consent.
In an emergency, when a person is unable to give informed consent or time does not allow for a full informed consent process, the clinician generally follows the principle of doing no harm. Treatment may be started in an emergency without full informed consent on the assumption that most competent people would consent to treatment, especially where life or limb was at risk. If time and circumstances permit in an emergency, obtaining the consent of available family members may be prudent.
Incompetence. If a judge determines that a patient is incompetent to make his or her own treatment decisions, a substitute decision-maker—such as a guardian—could be appointed. In these cases, respect would suggest that to the extent possible and appropriate you would inform the incompetent ward about treatment in a way that he or she may understand.
In other circumstances, such as when a healthcare proxy has been invoked, previously designated surrogate decision-makers provide informed consent on behalf of the patient who clinically is found to lack the capacity to make healthcare decisions.
Waivers. Sometimes a competent patient decides to waive the right to further information and may turn the decision over to the clinician. To rely upon this exception, some documented assessment—even if brief—of the patient’s capacity to waive information may be important.
As noted, informing patients of their health situations is expected and accepted. Even in psychiatric settings, receiving information about potentially serious medication side effects has not necessarily led to patient harm or refusal of treatment.15 Therefore, use of this exception is only for very narrowly tailored circumstances, if used at all, and not simply because you believe a patient will refuse to consent if informed about a proposed treatment.
Some case law exists on the need to establish why the therapeutic privilege was justified as a rationale to not provide informed consent in a particular situation.16 Therefore, though it should be rarely invoked, if you use therapeutic privilege, document why you invoked this exception for that particular patient and in that particular circumstance.
Building the therapeutic alliance
Although it may meet policy or legal informed consent requirements, simply providing the patient with a form to sign before treatment begins does little to enhance patient-clinician communication.2 Providing detailed written information also might not be adequate to ensure that the patient understands the complexity of a treatment you have asked him to consider.17 Instead, an informed consent model that relies on active, ongoing dialogue about treatment can maximize patient autonomy while working for the good of the patient (Table).
- the patient’s role is understood as that of an inquisitive consumer who may challenge the physician’s authority in the quest for information
- the clinician challenges the patient’s preconceived beliefs about his or her illness and educates the patient so that both parties approach the medical issue from common ground.