COMMENT:WHEN CONSENT IS INFORMED

One in five hospital outpatients leaves the consultation without understanding what is wrong with him or what his treatment is going to be, according to a survey by the Consumers’ Association.

One in four was given no information about his condition unless he asked ; of those who did ask, l4 per cent didn’t ask all the questions they wanted to.

Of those who didn’t ask at all, 63 per cent assumed they’d be told everything they needed to know. Other common reasons for not asking included lack of confidence, lack of interest shown by the consultant and “wanting to keep on good terms with the specialist”.

In not volunteering this information, the doctors of these patients are not only acting unethically. By carrying out an unexplained treatment they could also be breaking the law.

Few patients in this country know their legal rights. We don’t expect, or generally want, the law to come between our relationship with our doctor.

But the downside of this is that our doctors are able to overlook their legal obligations to keep us informed. Ironically, it also leaves the doctors themselves open to being sued by patients who didn’t understand what was going to happen to them. It’s in everyone’s interests to maintain a free flow of information back and forth.

UK patients have far fewer rights than, say their American counterparts. In the US, patients are legally entitled to whatever information a reasonable patient would want to know.

Over here, it’s the doctors who decide. You are entitled to be told only what an informed body of professionals would think appropriate. This means that even if you are an exceptional patient who takes an exceptional interest in his or her health, your doctor does not have to tell you what you’d like to know about alternative treatments, side effects and so on only what he and his peers have decided you should be told.

It means that the three quarters of respondents in the CA survey who said they wanted to have as much detailed information as possible about their condition cannot insist on it, if there are aspects that the medical establishment doesn’t think worth divulging.

Although we lag behind other countries, the CA survey confirms that our consultants are too ready to flout the rights we do have.

Everyone knows that before a doctor can proceed with a form of treatment, be it an operation or a course of drugs, the patient has to give consent. But what does consent really mean? Is it simply a signature on a form?

For consent to be legally binding it has to meet three criteria: it has to be informed, it has to be voluntary, and the patient has to be capable of understanding what’s involved.

The consultants in the CA survey would have fallen at the first hurdle: their patients’ consent was far from informed and, so, probably unlawful.

Ian Kennedy, professor of medical law and ethics at Kings College in London, says that many hospitals wrongheadedly believe that all they have to do is get a patient’s signature on a consent form and they’re covered.

Such forms, says Kennedy, are a red herring. “It’s an established legal principle that if there’s been no explanation of what’s involved, the signature doesn’t mean anything.”

On the other hand, if a patient has been fully informed, yet has signed nothing, the consent will still be lawful.

What constitutes voluntary consent? Kennedy believe that any form of coercion or emotional blackmail on the part of the professional throws the voluntariness of the consent into doubt.

One bright spot in the CA survey is the growing number of young people who aren’t satisfied with what their doctors have decided to tell them. Two thirds of those surveyed between l6 and 34 twice the number of those over 55 wanted to be given additional sources they could go to for more information about their condition.

This suggests that young people today are far less willing to place their health wholly in the hands of the “experts”.