Evidence base

Some clinicians believe that patients must be provided with every last detail of the evidence base, in order to enable them to assess the information objectively and to compare alternative treatment options. Not only is this another onerous prospect for the clinician, it also fails to recognise two important aspects of the consent process.

Firstly, it is not sufficient for the clinician to present the patient with information in terms that would be meaningful to another clinician; the evidence base is useful to inform a clinician, but this is usually very different from what the patient needs to know, and how this information needs to be presented.

Secondly, while the evidence base provides information regarding what treatment is most likely to succeed, or fail, it takes no account of the particular situation and circumstances of an individual patient. Take, for example, an oral surgeon who gives a standard warning to every patient that (for example) the incidence of inferior dental nerve damage associated with the surgical removal of lower third molars, is less than one in a thousand (10).

Patient (A) has a fully erupted lower third molar, with the pre-operative radiographs showing a separation of at least 8mm between the inferior dental nerve bundle, and the roots of the tooth. Patient (B), on the other hand, has a deeply impacted third molar, where the radiographs suggest a very close or intimate relationship between the roots and the inferior dental nerve. The clinician’s standard warning is clearly irrelevant and inappropriate to both of these patients.

This illustrates the danger of giving the same information to every patient, and the importance of personalising any information provided, for each individual patient. It is in this context that the Rogers v Whitaker judgment (see above) is helpful to us in our understanding of the patient’s perspective, even though the judgment itself has application only in Australia.

In some situations, it is clear from the clinical records that there has been at least some discussion of a particular risk, or a range of risks, in advance of treatment. But when bringing a subsequent complaint or claim, a patient will often maintain that these risks, while mentioned in passing, had been discussed in a dismissive way, as if to suggest that the risk was so small or so remote as to be almost hypothetical or theoretical, rather than a real and immediate possibility to be considered.

Clinicians will often do their very best to be reassuring – particularly when dealing with nervous patients – but one must guard against doing this in a way which leads a patient to attach little or no significance to the warning or information in question. Patients, however apprehensive, must be left in no doubt as to the nature and extent of any risks of care and treatment that they are contemplating.

“Informed” consent

For as long as healthcare professionals are encouraged to believe that providing information to a patient is alone sufficient for the purposes of obtaining a valid consent, we will continue to do our patients a disservice. The continued use of the term ‘informed consent’, used without qualification and without fully understanding the pitfalls of this perspective of consent, is certainly not helpful.

It perpetuates an outdated and paternalistic approach to patient care and those who continue to use this term do need to appreciate that the focus should be on understanding, rather than the provision of information alone. It is for precisely this reason that Dental Protection stresses that consent forms serve only to confirm some of the details of the information provided; they tell us little or nothing about the communication process, the questions asked, the replies given and the level of understanding achieved by the time the ‘consent’ was eventually given. Nor do they provide any insight into whether or not any undue influence was exerted upon the patient when reaching a decision. This is why a detailed contemporaneous record will often be far preferable to a signed consent form alone.

Perhaps the most convenient and concise confirmation of the prevalent abuse of the term ‘informed consent’ comes from one of the most highly respected and widely acknowledged authorities in the field of Medical Law, Sir Ian Kennedy and Prof Andrew Grubb. In their definitive textbook, “Medical Law” they write:

“The aphorism informed consent has entered the language as being synonymous with valid consent. This, of course, not so and is in fact unhelpful. It gives only a partial view. The requirement that consent be informed is only one, albeit a very important ingredient of valid consent. Furthermore, the expression ‘informed consent’ begs all the necessary questions (which are the subject of the following section); for example, how informed is informed?”

Judges in certain other jurisdictions have found more helpful ways to encapsulate the essential principles of consent. Amongst the best of these is the term “enlightened consent”, which captures very nicely the idea that a patient needs to be put into a position from which they can understand the key issues which will influence their willingness (or otherwise) to undergo a particular procedure.