© Springer International Publishing Switzerland 2015
E. Carlos Rodríguez-Merchán and Sam Oussedik (eds.)Total Knee Arthroplasty10.1007/978-3-319-17554-6_44. Medicolegal Considerations – The Consent Process
(1)
Department of Orthopedics, University of California, Irvine, Orange, CA, USA
(2)
Knee Surgery Unit, The Wellington Hospital, 8 a Wellington Place, London, NU8 9LE, UK
Keywords
Knee arthroplastyPrimaryMedicolegal considerationsThe consent processPARQ conference4.1 Introduction
It is perhaps not surprising that the process of obtaining adequate informed consent prior to surgery has become increasingly more complex over the last few decades. As we see the increased application and introduction of new advances in surgical technology and techniques in orthopaedic surgery, there inevitably follows a wider choice of treatment. We are therefore not only duty bound to explain to our patients the different treatment options and to assist them in understanding the choices they need to make between surgical and nonsurgical treatments but also the exact nature of these procedures and the proposed benefits and inherent risks therein. There is an understandable temptation to assume that the act of taking consent is a “tickbox exercise” merely required to prevent medicolegal litigation. Indeed, there appears to be a general misconception that to operate on someone without written consent would necessarily be construed as an act of criminal assault. This view mistakes the true purpose of gaining consent, namely, to explain the thinking behind the surgeon’s recommendations for treatment and to appropriately manage the patient’s expectations of what can occasionally go wrong with an intervention whilst outlining the relative merits and outcomes of such an intervention.
Just how we should obtain the “perfect consent” is not clearly defined in the literature, as no such document actually exists. What we hope to achieve in this brief chapter is to bring together all the various guidelines that exist, indicating how we believe it is best to currently undertake this important process for the benefit of both the patient and the surgeon. We feel that it is only by embracing the opportunity that consent gives the clinician to better communicate with the patient that we can hope to make the whole process of mutual value for surgeons and patients alike. We will examine how, where and when consent should be completed, as well as the principles of what to include.
4.2 Historical Perspective
The Hippocratic Oath is amongst the most cited writings giving guidelines for the conduct of physicians. It advises that physicians conceal most information from patients to give the patients the best care [1]. The guiding principle is a beneficence model of care indicating that the physician knows better than the patient and therefore should direct the patient’s treatment simply because the patient is not likely to have better ideas than the physician. This view prevailed for many centuries.
The process of obtaining permission prior to surgical intervention is relatively new. Benjamin Rush was an eighteenth-century US physician [1]. In his writings, he advised that physicians share as much information as possible with their patients and respect a patient’s informed decision to accept therapy. There is no evidence in his writings that he promoted getting consent from patients prior to treatment.
Thomas Percival was a British physician who in 1803 published a book called Medical Ethics. Similar to other contemporary works, Percival’s Medical Ethics makes no mention of acquiring informed consent of patients or respecting patients’ decisions [2]. “Patients have a right to truth, but when the physician could provide better treatment by lying or withholding information, he should do as he thinks best”. Worthington Hooker was an American physician who in 1849 published a book by the title of Physician and Patient [1]. This book was considered radical. Hooker demonstrated understanding of Percival’s philosophy but soundly rejected all directives that a physician should lie to patients. Hooker stated that benevolent deception is not fair to the patient. Hooker’s ideas were not widely accepted at the time.
Over the last 60 years, with both the rise of the civil rights movement and the general decline of paternalistic attitudes within medicine, we have seen an increased move to respect the principle of a patient’s autonomy.
We all accept that the process of obtaining consent has moved a long way from the days when a patient merely presenting for surgery was, in itself, deemed to be compatible with consent. We have moved towards a more explicit granting of consent based on a dialogue between the physician and patient.
In the UK, no doubt as elsewhere in the world, the act of gaining consent has evolved with legal precedent. Just as in the case of Bolam vs. Friern Hospital Management Committee in the 1950s [2], there was an established standard of expected behaviour based on a responsible body of medical practice; it was similarly considered that obtaining consent was also to be based on the behaviour of just such a responsible body of medical opinion.
Cases within the English legal system continued for many years to rely on the Bolam standard, although in the case of Sidaway in 1985 [3], the patient’s claim for damages was rejected. The court held that the consent process did not require an elaborate explanation of remote side effects. However, importantly at the time that this judgement was made in the House of Lords, a contrary view was expressed by Lord Scarman that “the Bolam test should not apply to the issue of informed consent” and that the doctor should have a “duty to tell the patient of the inherent and material risks of the treatment proposed”.