2017 HSC Section 2 - Practice Management

Informed Consent and the Surgeon

J Am Coll Surg

Childers et al

cal team with his or her personal signature or the signature of the surrogate decision-maker. 8,10 This signature is of con- siderable import because it indicates that authorization is separate but necessary to the “consent” component.

the surrogate decision, the hospital ethics committee should be consulted. Cultural and familial issues Respect for autonomy and the judicious application of in- formed consent are cornerstones of modern medical prac- tice in the United States and reflect the largely individual- istic approach to patient care embodied in Western medicine. The concept of illness and how therapeutic de- cisions are made may differ in certain cultures. Surgeons and other physicians who practice within the Western medical paradigm can encounter difficult ethical dilemmas when caring for patients with varying cultural values. Sur- geons need to pay increased attention during the informed consent process to ensure that cultural values are identified, valued, and respected. On occasion, balancing the requirements of the tradi- tional, Western informed consent process with the appro- priate respect for the culture in question can be challeng- ing. Perhaps one of the biggest challenges to surgeons in the United States is dealing with patients and families from cultures in which the principle of individual autonomy is not the primary driving principle of decision-making. For example, Korean Americans, Japanese Americans, and Mexican Americans are examples of cultural groups who may generally more frequently believe that terminal diag- noses and information relevant to treatment should be withheld from the patient and instead communicated only with the patient’s family. 20,21 These situations raise obvious ethical dilemmas and challenges for the treating surgeon. For example, when the surgeon is asked to communicate more directly with the family rather than the individual patient, the direction of communication can be displaced away from the patient, which may prevent the surgeon from establishing an effective physician-patient relation- ship. Second, the surgeon loses the ability to fully assess the patient’s understanding of the disease and the available therapeutic options in the context of the patient’s unique values and interests. Third, and perhaps most significantly, the surgeon may have difficulty recognizing whether any given patient agrees with his loss of autonomy, or whether he is instead heteronomously acting under the pressures, values, or demands of others. 22 There are no easy solutions to these concerns. Surgeons should approach each patient as a unique individual re- gardless of cultural influences, and avoid making assump- tions based on race, religion, or family influences ( Fig. 2 ). 19,22 The most effective way to approach patients from cultures in which individual autonomy may not be the dominant ethical principle involves, from the beginning, a heightened attentiveness for subtleties in the interactions between the patient and the family. Discrepancies between

Informed consent: other considerations Patient refusal

There are a number of ethically problematic situations re- lated to the informed consent process that can arise in surgery. For example, a patient may refuse an operation because he or she is unable to make a decision, despite the surgeon having engaged the patient in the informed con- sent process as outlined earlier. The surgeon should recog- nize that the patient has the right to refuse an operation, and explain to the patient that no offense has been caused as a result of the refusal. 10 The surgeon should explore with patients the reasons for refusing an operation; this gives the surgeon some insight into the patients’ thought process, and demonstrates to the patients that their refusal does not mean that they lose the care or support of their surgeon. In addition, patients who refuse elective surgery should un- derstand that their refusal does not necessarily prevent an opportunity for a later procedure. Diminished capacity Not infrequently, surgeons may encounter patients with diminished decision-making capacity secondary to cogni- tive dysfunction, psychiatric illness, etc. Surgeons should not automatically assume that these patients are incompe- tent and deny them a role in the informed consent process. The surgeon has a responsibility to personally engage the patient to determine the patient’s level of understanding. Although the capacity to participate in decision-making can be made by a physician, determination of incompe- tence is more a legal issue requiring psychiatric testimony and a judicial process. If consultation with psychiatrists, lawyers, or other physicians is necessary, the surgeon should be upfront with the patient about this plan. 8 Ulti- mately, the goal between the surgeon and any consultant should be to improve the patient’s decision-making capac- ity when possible, and not to simply obtain affirmation that a patient needs a proxy decision-maker. There will be patients, however, who are incompetent to make their own decisions. Patients deemed incapable of making decisions require a proxy decision-maker. The proxy decision-maker can be someone previously chosen by the patient when the patient was in a competent state, or someone appointed by the court. Often proxy decision- makers are family members or close friends who have been chosen because they are believed to have the best percep- tion of the patient’s values and interests. 10 In those occa- sional circumstances in which the surgeon disagrees with

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