On 12th January this year, Advocate Fidel Mwaki shared on his status an interesting article titled “The ethical dilemma in treatment consents during critical care emergencies”.
The same was published in one of the dailies in Kenya. The three authors of the article used a real scenario to derive their point.
This was the scenario: ‘An elderly man presents himself to hospital with Covid-19 disease.
Upon investigations, a critical situation is noted— his oxygen level is hovering at 60 percent— this is dangerous.
While the elderly man is conscious and can speak and listen, he won’t give consent to being intubated. Does he realize his life is threatened?
His second-born son, who has brought the father to the hospital, is asked for consent but refuses to give it. It’s also almost midnight.
Desperate for a decision to intervene, the clinical team reaches out to the chair of the hospital ethics committee.
By the time he arrives, the son has left and nothing can be done at that moment.
First thing in the morning, luckily the man’s condition is as stable as possible but still will not give consent.
The clinical team meets with the hospital ethics committee chair but what can they do?
First thing is to have a consultation with the family. The son is called in and the grave situation regarding his father’s health is explained.
He cannot make a decision to intervene, it is not his place. What does that mean? Why not?
We know the condition, the medical team is unanimous in its recommended approach, without treatment the father’s demise is certain, and it is a relatively straightforward decision to make.
“You see”, the son explains, “my mum passed away a couple of years ago. Ever since then, it is my younger sister who tends to my father’s needs, makes decisions, and he very much relies on her counsel.
Without her say, we cannot do anything.” Problem solved: the man’s daughter is contacted, she rushes to the hospital, signs off on the treatment, the intubation is performed and he recovers.’
Informed consent is based on the moral and legal premise of patient autonomy.
You as the patient have the right to make decisions about your own health and medical conditions. You must give your voluntary, informed consent for treatment and for most medical tests and procedures.
The legal term for failing to obtain informed consent before performing a test or procedure on a patient is called battery (a form of assault).
There are situations in which getting consent is extraordinary, depending on prevailing circumstances.
Under such circumstances, there are exceptions to the informed consent rule.
The most common exceptions are these: An emergency in which medical care is needed immediately to prevent serious or irreversible harm and incompetence, in which someone is unable to give permission (or refuse permission) for testing or treatment.
Informed consent to and in medical treatment is fundamental in both ethics and law.
Patients have the right to receive information and ask questions about recommended treatments so that they can make well-considered decisions about care.
Successful communication in the patient-physician relationship fosters trust and supports shared decision-making.
The process of informed consent occurs when communication between a patient and physician results in the patient’s authorization or agreement to undergo a specific medical intervention.
In seeking a patient’s informed consent (or the consent of the patient’s surrogate if the patient lacks decision-making capacity or declines to participate in making decisions), physicians should:
Firstly, assess the patient’s ability to understand relevant medical information and the implications of treatment alternatives and to make an independent and voluntary decision.
Secondly, present relevant information accurately and sensitively, in keeping with the patient’s preferences for receiving medical information.
Thirdly, document the informed consent conversation and the patient’s (or surrogate’s) decision in the medical record in some manner.
When the patient/surrogate has provided specific written consent, the consent form should be included in the record.
However, in emergencies, when a decision must be made urgently, the patient is not able to participate in decision-making, and the patient’s surrogate is not available, physicians may initiate treatment without prior informed consent.
In such situations, the physician should inform the patient/surrogate at the earliest opportunity and obtain consent for ongoing treatment in keeping with these guidelines.
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In the scenario that I have highlighted above, the social and kinship structures of the community, the context and culture, and the particular circumstances, all come into play in the patient’s care.
The family dynamics, the recent history of loss— unresolved grief, the severity of the condition, and the structures and decision-making at both individual, family and hospital level, shapes the process of decision-making and the options on care.
As patient autonomy to determine his or her own care swings the balance of power away from the medical professional’s knowledge and honored place in unchallengeable decision-making, clinicians face such ethical dilemmas regularly.
Doctors, nurses, and ancillary staff need not just training and support to deal with cases that are challenging but also anticipatory thinking to determine the process of decision-making at the level of the hospital and medical facilities that are ultimately in the best interest of the patient.
Family dynamics come to play greatly.
This may affect the speedy treatment of a patient. An example may suffice.
When one is in a delicate condition and is brought by the family and then the family, after being taken through the procedure by the doctor, resolves that the patient cannot be taken through the said process for the best reasons known to them.
As a doctor, what can you do? You have the oath to save lives and then on the other end, consent has been denied.
How do you proceed? These are the challenges that doctors come across in their day-to-day operations.
In this case, one might be right to argue that if the consent has been denied, then the doctor’s hands are tied and the family’s decision takes precedence.
This brings conflict between medical ethics and perhaps depending on one’s school of thought.
Bringing a balance can be equally difficult if one gets those who are myopic about issues.
Consent is a right that each patient has and it reigns supreme. The only difficulty is when consent can’t be accorded and life is in a process of being lost. Where do you stand?
Jerameel Odhiambo is a law student at the University of Nairobi, Parklands Campus.