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Another primer on informed consent (Proceedings)

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Nov 01, 2009

In many veterinary practices today, obtaining informed consent consists of the receptionist placing a consent form in front of the client and telling the client they need to sigh the form so the doctor can perform the surgery or treat the animal. In my presentation today, I want to emphasize the importance of informing the client rather than simply obtaining the client's consent.

History of Informed Consent

The doctrine of informed consent arose centuries ago in the common law. Doctors, lawyers, and other members of the "Learned Professions" were thought to have knowledge that was beyond the understanding of the average person. This knowledge was often referred to as the "mysteries of the learned professions." At that time, most people had a broad general knowledge of most of the areas that affected their lives; they knew how to build a house or barn, how to repair their wagons, how to make clothes, how to raise livestock and prepare it for consumption, etc. Since the average person was not expected to know and understand the "mysteries of law and medicine the courts imposed a special duty, the duty of informed consent on the members of the learned professions which required them to inform their clients and patients of facts concerning their medical care, legal representation, etc.

The Reasonable Practitioner Standard

The reasonable Practitioner Standard is set forth in Karp v. Cooley, 493 F.2d at 411 (5th Circuit, 1974). This standard requires a physician to disclose facts that a reasonable medical practitioner in a similar community and of the same school of medical thought would have disclosed regarding the proposed treatment. This used to be the accepted standard in most jurisdictions, but has fallen from favor in recent times. It is a rather paternalistic approach which assumes that the doctor will decide what the patient needs to know in making medical decisions. This standard has fallen from favor as patients and clients become more knowledgeable concerning medical care and want to take a more active part in determining medical care for themselves and their animals.

The Reasonable Patient Standard

The reasonable Patient Standard is articulated in Canterbury v. Spence, 464 F.2d 772 (D.C. Cir 1972). This standard requires a practitioner to disclose all risks that would be material to a reasonable, prudent person in the patient/client's position. A "material risk" is a risk that, if known, would cause the patient to alter their consent. Under this standard the practitioner no longer decides what he or she thinks the patient/client needs to know, but must disclose what a reasonable patient or client would want to know. This is a step away form the paternalistic approach of the Reasonable Practitioner Standard and is the standard applied in most jurisdictions today. This standard recognizes that clients today are more informed of medical issues and want to be more involved in the medical decisions regarding themselves and their animals

The Individual Patient/Client Standard

The Individual patient/Client Standard comes from Scott v. Bradford, 606 P.2d 554 (Okla. 1979), an Oklahoma Supreme Court decision. Under this standard, the practitioner must determine what risks are material to the particular patient or client h or she is dealing with and disclose those risks which are material to that individual. This is the most demanding standard on the practitioner and has not found favor in many jurisdictions. However, even this highest standard can be met by asking the question, "Do you have any more questions?"

Lawyers are familiar with the phrase, "What else?" When an opposing party is asked to list something, such as all the ways in which they have been harmed by another person, when the person appears to have finished their response the careful attorney will always ask, "What else?", and will keep asking until the person says, "That's all." In the same way, the person obtaining the informed consent should always keep asking, "Do you have any more questions?" until the person replies, "No."