00:01
Alright, so after there's
been the disclosure
of information and
the checking of understanding,
Then, you actually have
to get to reaching the decision.
00:10
And there are four ways
that a decision might be made.
00:14
There could be implied consent.
00:15
There might be expressed consent.
00:17
There could be expressed refusal.
The patient's saying, "No".
00:20
For patients that
don't have the capacity
to make their own decisions.
00:24
They might still be
able to say yes or no,
which is called an
assent or dissent.
00:29
That's an important
element to assess.
00:31
But you're still going
to rely on someone else
as we'll get into someone
else to make the decision for them.
00:38
So let's go through each of those.
00:39
So first of all,
implied consent
is the patient's
actions or behaviors,
even a gesture that they make,
or an inaction
not moving away from us
might be a sign that
they are implying consent,
we can infer that they agree to what
we're going to do.
01:00
And it's based on
the certain circumstances.
01:04
And it's important to
point out that implied consent
can be withdrawn at any time.
01:08
So even though the
patient you might presume
that they are consenting,
they could then verbally say, No,
stop, I don't want you to proceed.
01:17
And then you have
to respect that decision.
01:20
So a common example would be,
the doctor says,
"I would like to take your pulse."
The patient, hold
out their their wrist,
the doctor starts taking
their pulse and sits quietly.
01:33
it's an implied consent.
01:35
You don't need to sign a
contract, or consent form for that.
01:38
It's presumed by based
on the patient's behavior,
that they're agreeing
to let you check their pulse.
01:45
Or same thing for
something like phlebotomy.
01:47
Common practice, when a
patient is admitted to the hospital.
01:51
If they put their arm out,
to allow the needle to be inserted
to draw blood out,
you can infer that there's
an implied consent.
02:00
So the behavior sort of leads to the
inference, and then you can proceed.
02:06
But it's important to note that
there's also concerns about battery.
02:11
So intentional touching
of another person
without their consent is forbidden.
02:15
You should not do that.
02:17
The mere fact that a person
voluntarily comes
to seek medical attention,
comes to the hospital, or comes
to a clinic, and, is admitted,
does not automatically
imply that
they're agreeing to examination,
investigation, or treatment.
02:32
There still has to be
an exchange of information.
02:35
And a willingness by
the person to be touched,
to be examined, and so on.
02:42
So if you've have a surgeon
that performs surgery
and has not gotten consent, that can
be a consideration of battery.
02:50
There hasn't been that
actual permission by the patient
to perform the surgery.
02:56
Or the physician
decides to go well beyond
what was proposed in the procedure.
03:02
The patient might have
consented for surgery,
but now the physician
is doing more than
what was proposed
in the original consent.
03:09
That also might be
considered grounds for battery.
03:13
So let's talk about the situations
where the patient does consent
or does authorize us to proceed
with the proposed treatment.
03:20
So this is called expressed consent.
And it can be oral.
03:24
So the patient verbally
telling us, yes, let's proceed
or it could be in written form.
03:29
Now, although orally expressed
consent may certainly be acceptable
in many circumstances,
often it's the case
that there's going to be a need
for written confirmation.
03:39
You know, it can be the case
that a physician,
if they document
in the medical record,
that they've had a discussion
with the patient,
they've gone through
the elements of disclosure,
the risks, the benefits,
the alternatives,
and the opportunity for the
patient to ask questions
and have those questions answered.
And that then the patient consented.
03:59
If that's all documented
by the physician,
that may be adequate in
a lot of jurisdictions,
but there may be situations
where it's important
to actually have a
written consent form.
04:08
And that's often going to
be the case for surgery,
any kind of invasive diagnostic
or therapeutic procedures,
things that involve anesthesia with
either deep or moderate sedation,
or any treatments or
tests that you think
are going to carry
substantial risk,
then you're going to
require a written consent.
04:28
And the consent is just
another way to demonstrate
that you've gone through the
elements of the consent process.
04:35
You've confirmed it.
04:36
This is a way for the
patient to validate
that they've received
the information,
they've adequately understood
what's been described to them.
04:43
And that then means that they will
be willing to proceed with it.
04:46
And that gets documented
in the medical record.
04:51
So if you're thinking about
an informed consent form,
again, this additional proof
that the discussion has occurred,
there are going to
be various elements
that you want to have
included on the form.
05:02
So first of all, if it's a
surgery or procedure list,
you want to describe who will
be performing that procedure.
05:09
Also, if it involves trainees,
who's going to be supervising
those trainees in the performance
of that surgery or procedure.
05:19
You again, want to make sure that
there's a description
of the intervention,
its benefits, risks,
the potential complications,
the alternatives to
doing the intervention.
05:29
You want to make sure
that it's specific.
05:33
So if you're doing knee surgery,
you want to say that it's
we're going to do surgery on your
left knee, not your right knee.
05:39
So everyone's clear
about what the plan is.
05:41
If it's something that's
going to repeat over time,
something called serial consent,
let's say it's consenting
for a blood transfusion.
05:51
You anticipate that
the patient might need
future blood transfusions,
this consent form is to apply to
those future situations as well.
06:00
Now, if the risk benefit
calculation changes,
there might be a need to
do a new informed consent.
06:05
But if everything stays the same,
in terms of the
risk benefit calculation,
that serial consent
can be permissible.
06:13
Generally, the consent forms are
going to have some kind of language
that says the patient acknowledges,
that they've had the opportunity
to ask questions.
06:20
So another way for them
to make sure
that their autonomy
has been respected,
that they've been able to ask
questions that help them understand
what's being proposed.
06:31
And then some evidence
of the consent,
usually, that's going to be
a signature by a patient.
06:38
If they're not able to sign
they could put an X on the form.
06:41
Generally, you know,
for legal reasons,
you might want to have an
actual date on the form.
06:46
So the date and signature
would be demonstration.
06:49
This is when it occurred,
the consent process,
this is what the patient agreed to.
06:55
Also, there often is a requirement
that the healthcare provider
themselves that practitioner
signs the consent form
and dates the form as well.
07:06
And in some jurisdictions might
require a witness to also do this.
07:10
It's also important for what
we call telephone consents.
07:14
So where you don't have
the opportunity for an in person
contact with the person,
they can actually
sign a piece of paper,
but you have a witness listening
in on the conversation.
07:25
And they say yes, the patient
received the information
or the authorized decision maker,
received the information.
07:30
And I witnessed this
and attest to it.
07:33
They put their
signature on the form.
07:37
And you know, it's also important
if a lot of times nowadays,
we have pre printed forms,
which aids and making sure
that everything is legible.
07:45
But if you're writing
anything down,
you make sure that it's
legible and understandable.
07:50
Again, you're using terminology
that the patient will understand.
07:54
You're not just
using medical jargon.
07:58
Alright, so you've gone
through the disclosure,
the checking of the understanding,
you've gotten consent
by the patient,
so we consider that authorization.
08:08
It's not just a
signature on the form.
08:09
That's not up to
your goal or your intent.
08:12
You're really trying to make
sure that the patient understands
and is making a decision
that's best for them.
08:20
And it also means that
they're authorizing you
to act on the decision
that they have made.
08:25
So authorizing that healthcare
practitioner to do somethings.
08:29
So perform a surgery,
prescribe a medication,
whatever the case may be.
08:36
Now, there's also the
possibility, as I said,
this is really informed
decision making.
08:40
There's also the possibility
that there's expressed refusal.
08:43
So a patient has
the right to decline
the treatment or a diagnostic test,
whatever we're proposing to them,
they can say, "No,
that's not right for me."
So after they've been
given adequate information
about the proposed intervention,
if they have capacity,
they may voluntarily decide
against the proposed intervention
that is perfectly within
their rights to do.
09:05
And also, it's the case that
even though they might have
agreed at one point in time,
they could withdraw or modify
their decision at a future time.
09:14
You know, maybe it's not possible,
right, in the midst of a procedure
or certainly if they're
in the operating room,
under anesthesia, they can't
change the mind at that point.
09:24
But if it's possible for them
to maybe change their mind,
they can withdraw
their consent at any time.
09:33
Now, it's important,
if the patient does say,
"No, I do not agree with
what you're proposing."
You really want to make sure the
as the healthcare practitioner,
that you ensure the
patient understands
the implications of the refusal.
09:48
Now, I think there is a role for
what I would call do persuasion
to trying to convince the person,
but if that becomes
badgering the patient, or
really trying to force the issue,
then it becomes coercion,
where manipulation of the patient.
10:03
Really, we should respect
their right to say, no.
10:06
We want to do our due diligence
to try to convince them,
if really, we think it's for
their medical good,
but if they say no,
we should accept their response.
10:17
We still have a need
to take care of them.
10:19
So we still have an obligation
to provide care to them
for their condition,
even if they're not going
with what we recommended.
10:26
So let's say they decide
to go with sort of the just
the natural history of
their disease process,
we need to still take care of them,
maybe they're going to change
their mind in the future.
10:36
So we need to be available to them.
10:37
Whatever the limits of the
consent that they put in place,
know that might
change in the future.
10:44
And we need, again, this exchange
of information along the way
to see if they might modify
that consent or refusal.