Deepa* was scheduled to undergo a surgery at a leading private hospital for which she had to undergo blood tests. However, without her consent or her family’s, the hospital proceeded to conduct an HIV test on her. They only learnt of what the hospital had done when they saw the test results. Enraged, her family is now fighting a legal battle against the hospital.
Consent is key in hospitals. The patient has the right to know what treatments and tests they are undergoing, and have the right to say no when they want to.
However, what happens most of the times is the staff merely directs the patients where to sign, without telling them what each form really stands for, mostly always rushing patients through the process of signing consent forms.
And very often, patients repose their trust in these hospitals and blindly sign the forms without reading the terms and conditions.
Hospitals, teaching or non-teaching, are legally bound to brief the patients about treatment options, the benefits as well as the risks involved and take the consent of the patients if they choose to undergo the treatment. Treatment cannot even be started unless the patient gives their consent.
Blanket consent
Dr Savio Pereira, a medico-legal expert says, “Most nursing homes and small hospitals use blanket consent for many treatments, even for those ones in which blanket consent does not apply.”
Blanket consent is what you sign when you fill the admission forms at hospitals. This is automatically invalid for those treatments which require specific consent. Most people, however, are not aware of this and various treatments are meted out to them under the banner of blanket consent. Legally, these are troubled waters if there is a case of medical negligence.
Implied Consent
When a patient pays the fee to consult with a doctor, it is implied that the patient is willing to be examined by the doctor and there is no need for an outright expression of consent. However, Dr Savio adds that if a patient is uncomfortable with certain clinical examinations, then the doctor would need to take expressive oral consent before proceeding.
Informed consent gone wrong
Numerous medico-legal cases are fought in courts, which stem from informed consent gone awry. Take the case of Seema Rai, where her husband fought a protracted legal battle for 8 long years.
Seema underwent a pancreatic transplant in Fortis Hospital, Bannerghatta; however, doctors failed to inform her or her family about the transplant.
Apparently the consent form was presented to her daughter while Seema was already in the operation theater for another surgery. The daughter was not told the details of the consent form and was misled by the nurse that the forms are for routine check-ups. Unfortunately, Seema passed away within a week of the surgery due to postoperative complications and cardiac failure.
Who will treat you: Doctor or doctor-in-training?
In teaching hospitals, there is an established hierarchy of medical professionals. For those treatments wherein a team of health professionals are involved, there will also be undergraduate and post-graduate students who are there to learn. In some cases, they undertake the treatment under the guidance of a senior doctor. The patients are not made aware of this aspect of treatment at teaching hospitals. As long as the treatment takes off, under the guidance of a senior doctor, trouble is kept at bay. Medico-legal experts say, in terms of informed consent, a senior doctor is not bound to disclose anything about his team of health professionals working on the treatment as long as he takes an active role in the treatment.
Teaching hospitals have an upper-hand when it comes to resources and being abreast with various researches and the latest developments in the field. According to Dr Savio, teaching hospitals stick to protocols with much more diligence than the non-teaching hospitals. Some experts say that, by and large, both teaching and non-teaching hospitals are similar when it comes to dispensing care. The legalities of informed consent applies the same to both types of hospitals. There is no separate regulation on informed consent between the two.
When responsibility is shunted
Dr Madhanagopal, a general physician, says, “When it comes to signing the informed consent forms, it is imperative that the patient must read the forms thoroughly and made to understand all the medico-legal matters in the document. It is the responsibility of the doctor. However, in all the major hospitals, these matters are mostly handled by the nursing staff or auxiliary health-care staff. This is unacceptable.”
Experts say the significance of informed consent is especially undermined in small hospitals and this needs to change. According to Dr Madhanagopal, no matter how busy the doctors are, it is their responsibility to help the patient with the consent forms.
Dr Shanthi Chelliah, another general practitioner, says, “When a treatment goes wrong, it is the doctors who are blamed everytime, and, for this reason, the doctors are very vigilant about informed consent.”
She adds that it is not just the patients who need to be protected but also the doctors.
What can be done?
Patients have the right to choose to not give consent for any particular treatment. Often this doesn’t come to light until something goes wrong.
Dr Savio says, “Hospitals should display the patients’ rights on charts. They are to be placed at prominent points in the hospitals so as to catch people’s eyes.”
Experts say that the media can do a lot in generating awareness among the masses when it comes to their medico-legal rights. As many advertisements there are for private hospitals in the mainstream media, there ought to be that many public awareness campaigns about the medico-legal rights of patients.
With the awareness of the legal backing that they are entitled to, patients will become more assertive and upfront about their consent to doctors.