What Is Informed Consent?

Just like lawyers, doctors must abide by a code of professional responsibility that governs the way they perform their professional duties and the way they treat their patients. The physician’s code is called “The Code of Medical Ethics.” It was adopted in 1847, when the American Medical Association (“AMA”) first created rules for all members of the medical profession to follow. One of those rules—Rule 2.1.1—governs the issue of “informed consent,” which includes matters regarding a patient’s consent to treatment, decision making, and communications with their physician.

What is the Code of Medical Ethics?

The Code of Medical Ethics sets out fundamental values or ethical rules that all physicians in the medical profession must follow in order to practice medicine. At its core, the Code of Medical Ethics consist of four “pillars” or ideals that all physicians must strive to achieve.

What Are the Four pillars of the Code of Medical Ethics?

Beneficence. “Beneficence” means that doctors must always strive to do good and produce the best results for their patients, the profession, and society.
Non-maleficence. “Non-maleficence” embodies the popular adage “First, do no harm.” A physician may never perform his or her duties or act in a way that results in harm to the patient.
Autonomy. “Autonomy” is the pillar that most closely captures the concept of “informed consent.” Ensuring autonomy means giving patients the freedom to make their own decisions about their medical treatment, provided they have the capacity to do so. In order to choose freely, however, the patient must be fully informed about the choices they are making. This involves the concept of “informed consent.”
Justice. The last medical pillar is “Justice,” which simply means that physicians must always be fair in performing their professional duties.

These “pillars” are supported by nine ethical principles that govern a physician’s professional responsibility.

What Are the Nine Principles of the Code of Medical Ethics?

The Principles of Medical Ethics are statements or requirements invoking the ethical values that all physicians must fulfill in their professional duties. These principles are enumerated in the Code of Medical Ethics and consist of the following:

I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.

III. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.

IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

V. A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.

VI. A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.

VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.

VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

IX. A physician shall support access to medical care for all people.

Along with opinions of the AMA’s Council on Ethical and Judicial Affairs, these principles of medical ethics form the foundation of your physician’s professional responsibility that is owed to you in the course of your treatment. If your physician fails to fulfill these responsibilities and performs any act that results in harm to you, you may be entitled to financial compensation for that harm.

The most important requirement for ethical treatment from your doctor—before you even receive treatment—is the requirement of informed consent.

What Is Required for Informed Consent?

Informed consent is something you provide and your doctor receives. It is a critical component of a patient’s right to receiving ethical medical treatment. As a patient, you have a right to choose the medical treatment you receive. Except in the case of an emergency, no doctor can subject you to any kind of treatment or medical care that you do not understand and authorize.

You also have the right to know what treatment options are available to you, and to understand, and ask questions about, those options so that you can make an informed decision about the medical care you receive. When you are able to:

make your own decisions
understand all of your treatment options
choose the treatment you receive, and
authorize the doctor to provide that treatment,

then this is informed consent.

Informed consent can only occur when there is proper and effective communication between you and your physician. But effective communication is always a “two-way street.” Just as your doctor has ethical responsibilities that he or she must follow, you also play a critical role in making sure successful informed consent occurs.

What Must a Doctor Do to Obtain Informed Consent?

To engage in successful informed consent, your doctor must:

Assess your mental capacity. Even if your doctor clearly and concisely provides all the relevant information you need in order to make a decision about your treatment options, you cannot provide informed consent if you are not able to understand information or make decisions on your own. Before a doctor performs any treatment, he or she must be satisfied that you are capable of understanding and consenting to the treatment he or she provides.

Often, your doctor may think you understand your treatment options, but there are many barriers to successful communication. Your doctor is ethically and legally responsible to make sure there are no barriers to your informed consent to treatment. These barriers could include:

Mental incapacity. If you are elderly and suffer from dementia or another mental incapacity, you may have difficulty understanding what your doctor tells you or making a decision. If you are not capable of making your own decisions, you cannot provide informed consent. Someone else, called a “surrogate” (usually a family member), must make your decision for you.
Language barriers. If your doctor discusses your treatment options in English but you speak another language, or if English is your second language and you do not fully understand your doctor, you cannot provide informed consent.
Cultural barriers. Doctors must understand that some patients may hold a different cultural perspective of conventional medicine than others. Some patients are inclined to question their physicians and the medical treatment they provide, while others may take a more passive approach to their medical treatment and be hesitant to question their doctor about anything they don’t understand. Just because a patient agrees to treatment does not mean they have provided informed consent.
Inform you of all your treatment options. Your doctor should provide you accurate information about your medical treatment options so that you can make a choice that you understand and are comfortable with. When explaining your treatment options, your doctor should include information about:
Your diagnosis (if known)
All appropriate treatment options
The nature and extent of each treatment option
The risks and benefits of each treatment option or of declining treatment
Listen to and answer any and all of your questions. Your doctor should always ask you if you have any questions and if you understand the treatment plans he or she discussed with you.
Document your informed consent. To confirm that you are consenting to treatment, your doctor should provide you a written consent form that you sign. Your doctor should record this consent form in your medical records.

What Must a Patient Do to Provide Informed Consent?

As a patient, you also have an important and active role to play in providing informed consent. To properly provide informed consent, you must:

Have sufficient mental capacity. To provide consent, you must be able to understand information and make your own decisions. You must be mentally able to understand and consider options. You may not be able to provide informed consent if you are:
Mentally incapacitated
Intoxicated by alcohol or drugs (even if you received medicine in the hospital)
Unwilling or unable to listen to your doctor
Unable to understand the language your physician is speaking
Don’t understand your treatment options for any reason
A minor (only a parent or guardian may consent for a minor)
Ask questions. If you understand your treatment options and are able to make your own decision about which treatment to receive, then you may consent. You do not have to ask questions. But if you do not understand your treatment options and do not ask questions or inform your doctor that you do not understand, then you may have a difficult time raising a claim against your doctor.

Without proper and effective communication between doctor and patient, it is difficult to achieve informed consent. Both doctor and patient must take an active role in assuring that the patient understands, authorizes, and receives appropriate treatment that they want.

What Happens If My Doctor Provided Treatment That I Did Not Understand or Authorize?

If a doctor fails to adhere to the principles of medical ethics by failing to fully and accurately inform you of all your medical treatment options and provides treatment to you without your full understanding and authorization, this is a breach of the standard of care that all doctors are legally required to provide to every patient. If you received medical treatment from your doctor that your doctor did not explain, or that you did not understand or authorize, and you suffered an adverse effect from your treatment, you may be entitled to compensation for any harm you suffered, and continue to suffer, as a result.

Be Sure Your Doctor Met the Proper Standard of Care and Obtained Your Informed Consent

Medical malpractice claims are difficult to win. To raise a claim of medical malpractice for lack of informed consent, you will need an experienced medical malpractice attorney to assess your case, study your medical records, collect relevant evidence, negotiate with your doctor’s insurance company, and possibly take your case to trial. The attorneys at Foster Wallace, LLC, are able to help.

The attorneys at Foster Wallace are experienced medical malpractice attorneys who are ready and able to assist you in your case. They will work with you and for you to assess the treatment plan your doctor provided and what might have been the proper treatment plan to receive. If your doctor failed to satisfy the appropriate professional standard of care by failing to obtain informed consent according to the principles required in the Code of Medical Ethics, we will hold your doctor responsible and make sure you receive the compensation you deserve. Call Foster Wallace, LLC, today at 816-320-6810 for a free consultation to discuss your case.

Filing a Medical Malpractice Case? Our Medical Malpractice Attorneys Can Help.

If you or a loved one has experienced medical malpractice in Kansas City you should speak with an experienced medical malpractice attorney as soon as possible. Contact us online or call our Kansas City office directly at 816.249.2101 to schedule your free consultation.