When Is Not Disclosing Okay?

Under usual circumstances, a physician is required to obtain informed consent from a patient before beginning treatment or a procedure. Within the purview of the consent, the physician must disclose information including:

(1) The condition being treated;

(2) The nature and character of the proposed treatment or surgical procedure;

(3) The anticipated results from the proposed treatment or surgical procedure;

(4) The recognized possible alternative forms of treatment; and

(5) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including non-treatment.

After making certain that the patient understands all of the information that has been disclosed and agrees to the treatment, then, and only then, is the physician permitted to begin. However, what if there is no time to spare as the patient’s life hangs in the balance? Under certain circumstances, the treating physician is allowed to bypass the rules of informed consent.

Lack of Consciousness

Upon being admitted to a hospital for injury or illness, it is possible that the patient will be unconscious upon arrival. If an emergency exists whereby there is a need for immediate care and there is no time to waste without potentially jeopardizing the patient’s health, a physician is exempt from the requirement to obtain informed consent prior to beginning treatment. This was seen in Barnett v. Bacharach where the court held that in an emergency situation where the patient lies unconscious, a surgeon may carry out the duties of a doctor in the best interest of the patient even if those duties include performing a procedure that was never discussed with the patient. The court felt that ruling otherwise would make all physicians more concerned about potential litigation rather than saving lives.

It is important to note that an emergency situation that grants a doctor reprieve from obtaining informed consent from an unconscious patient only goes as far as allowing that doctor to repair the condition that gave rise to the emergency. The doctor is not allowed to repair other problems with the patient while operating without consent. For example, in Tabor v. Scobee, a surgeon learned of the patient’s infected fallopian tubes and removed them while performing an appendectomy. The court found that the extra fallopian tube procedure did not fall within the emergency exception since the removal was not deemed an emergency procedure. Such a procedure required the informed consent of the patient.

Incompetence

If the patient is conscious but considered to be incompetent, it may prove to be quite difficult to obtain informed consent prior to beginning treatment. This is because the patient is likely unable to comprehend their medical condition as well as the risks and benefits associated with the treatment recommended by the treating physician. To be sure that the patient lacks the requisite competence needed to give informed consent, cognitive tests should be performed whereby the comprehension can be properly appraised.

Additionally, the treating physician should focus on the patient’s comprehension by assessing the nature of the patient’s condition, the nature and effect of any proposed treatment and the risks of both pursuing any proposed treatment and not pursuing any proposed treatment.

If, after testing, the physician still feels that the patient is unable to competently provide informed consent to treatment, this does not excuse the physician entirely from obtaining informed consent. Instead, the physician should seek out a guardian or relative who is capable of providing the consent. If the physician, despite their best efforts, is unable to locate a guardian or relative, they may treat the patient without informed consent, if the treatment is in the best interest of the patient.

Exceptions Allow for Lives to be Saved

Informed consent is important in that it stays true to the foundation of ethics that the medical profession sits upon. A patient has a right to have a say in what happens to their body. However, when a patient is unable to speak for themselves due to a lack of consciousness or a lack of ability, the law gives a doctor the power to put the patient’s best interests first and perform lifesaving procedures. These exceptions allow lives to be saved while taking the pressures of potential litigation away from the practice of medicine.