Informed refusal – A gray area in informed consent
Correspondence Address: Source of Support: None, Conflict of Interest: None DOI: 10.4103/0028-3886.193834
Source of Support: None, Conflict of Interest: None
The article by Daljit Singh et al., on “Informed Consent in Neurosurgery” brilliantly examines the multiple facets of a routine pre-surgical chore. Backed by evidence, experience and good faith, surgeons often assume that patients would readily approve of the surgical endeavors to cure them. However, surgical consent has shifted from the paternalistic “my doctor knows best” attitude to a more shared decision-making philosophy.
Most surgeons tend to dissociate themselves from the patients who refuse surgery and often hurry to discharge them from medical care. The term “discharged against medical advice” often appears demeaning and derogatory. It also negatively influences future medical care at another center. A future prospect of revoking or rethinking this refusal and consenting for surgery at a later date seldom exists in our informed consent process.
The basic legal principle is that it is unlawful to administer treatment against the wishes of a competent adult, even in a situation where without treatment, the patient would die., Thus, when a Jehovah's witness patient refuses blood transfusion in a life-threatening situation, it cannot be forced on him/her.
We aimed to delve deeper into the “right to refusal” that the patient holds, from which surgeons sometimes shy away. When facing “a refusal to consent for surgery” situation, it is worthwhile to consider the following questions.
Is it really a refusal?
A touch of reluctance or too many doubts should not be misconstrued as a refusal to consent. Hence, the certainty of a refusal needs to be ascertained in no uncertain terms. A slight tinge of hesitation to consent could be due to undue apprehensions or the need to consult other family members., Hence, refusal should not be a one-time event but a process wherein the negative consequences due to worsening of the illness sans surgery are clearly understood by the care givers of the afflicted.
Why the refusal?
Revealing procedural risk is always a fine balance between providing reasonable information and the danger of frightening off the patient from beneficial treatment. Causes for refusing surgery could be myriad ranging from the innocuous to the unimaginable. Reasons like an unauspicious day or cosmetic apprehensions may seem trivial to the surgeon out to save a life, but may be the patient's main spot of bother. Hence, documentations of refusal should clearly mention the reasons and also the efforts made to clear the many misconceptions and worries.
If the patient appears unduly anxious and the information about surgery could cause significant psychological harm or be processed irrationally, then the surgeon could exercise his/her “therapeutic privilege” and reveal only what is deemed necessary. “Capacity to refuse” is also as crucial as “capacity to consent.”,
Scope to reconsider?
Just as informed consent is a process rather than a one-time signature, so is the refusal process. Consent actually begins with an implied consent when the patient first consults the doctor and further gets more concretized when the surgical consent signature is obtained. Similarly, informed refusal is also a process and time to rethink and reconsider the decision must be given even if it requires a future readmission when the disease process has progressed to a more difficult stage.
Partial refusal? Withdrawal of consent?
It cannot be assumed that a patient who consents for a burr-hole and biopsy of an intracranial lesion would automatically consent for a craniotomy and biopsy as well. Thus, the event of an extended procedure or change of the surgical plan has to be included in the preoperative consent. It is often seen that during surgery when the patient is under anesthesia, a change of surgical plan is made in good faith and consent from the relatives is deemed sufficient. However, this exposes the surgical team to the risk of a malpractice or negligence claim, as is illustrated in a famous case (Sameera Kohli vs. Dr. Prabha Manchanda). In this case, the Hon. Supreme Court of India ruled in favor of the patient who alleged that consent was taken for a diagnostic laparoscopy but a salpingo-oophorectomy was also done. The doctor, in “good faith” did an extended therapeutic procedure for endometriosis taking consent from the mother of the patient when the patient was under anesthesia for a diagnostic laparoscopy. However, not having the patient's consent was deemed as negligence. Thus, partial consent or partial refusal holds a special connotation in medicolegal parlance. The patient also enjoys the right to withdraw his/her consent at anytime and it would be unlawful to continue surgical treatment in such a scenario.,
Is consent absolutely essential?
In a famous case when the parents of a premature baby refused to consent for blood transfusion, the court of family division, UK held that it was appropriate to over-ride parental objections and authorize blood transfusion. Lord Donaldson's famous judgement  gives guidance in such delicate situations of consent refusal. It says,
“A patient's interest consists of his right to self-determination. Society's interest is in upholding the concept that human life is sacred and should be preserved if possible. In a situation where the two interests conflict, the right of the individual is paramount. But when there is doubt, the doubt falls to be resolved in favor of the preservation of life.”
Thus, in an emergency situation or when public health/safety is at risk, the law provides for reservations in the consent process.
Let us therefore, recognize and respect the right to refuse.
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Conflicts of interest
There are no conflicts of interest.