Evidence-Based Reviews

Informed consent: Is your patient competent to refuse treatment?

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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.

Treating psychosis when no associated behavioral disturbance is placing a patient or others at risk might not constitute an emergency that would negate the need for informed consent. Thus, given Mr. D’s calm demeanor in talking with the clinician about his treatment, an emergency exception probably would not apply in his case.

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.

Therapeutic privilege often is cited in the literature but should be an infrequently used exception to informed consent. In very limited situations, a physician might decide to not engage in an informed consent discussion, believing the information to be disclosed would be so damaging that it would directly harm the patient or so emotionally distressing as to foreclose the possibility of the patient making a rational decision.

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).

Lidz and colleagues2 identified key conditions that must be present for such a process model of informed consent to work:
  • 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.
A patient also must be allowed to consider his or her own values in weighing medical decisions. These values may include the patient’s ability to tolerate side effects, willingness to take risks, and own sense of quality of life.

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