inside info about informed consent

by Kathleen A. Lambert, RN, BSN, JD

Do you find yourself intently watching television’s medical reality shows to see if they are realistic? What do you think of a doctor who tells a patient with a pole through her body, as they prepare her for surgery, that they will do the best that they can for her? Do you shout, “Aha! Lack of informed consent!”

Our patients and their families are medically sophisticated due to wider news dissemination, more entertainment channels on satellite and cable, and computer access to medical information, current research, and news about lawsuits. Patient autonomy has focused the spotlight on the importance of informed consent. Being adequately informed about planned procedures, treatments, research, and surgery is a patient’s legal right and a clearly defined duty for the healthcare provider. Many states have passed laws describing the necessary elements of informed consent.

What is informed consent? The patient, or someone acting on the patient’s behalf as the medical power of attorney, has received enough information to know what the patient is risking should he (or she) decide to undergo the proposed procedure or the consequences should he decide not to receive the treatment. The patient also needs to know the alternatives to the proposed treatment. The key to valid informed consent is comprehension. Does the person who is giving consent have the capacity to do so? Is he mentally, emotionally, medically, or chemically impaired?

Does this mean that every time you go into your patient’s room to care for him that you have to get consent? Consent can be obtained in a variety of ways – express, implied, written, oral, complete, or partial. Patients sign a general consent form on admission that usually includes consent for routine types of procedures, such as vital signs, bathing, medications, nursing care, and treatments. This is an express written consent. A patient gives implied consent when you tell him that you are going to take his blood pressure, and he extends his arm.

Surgical consents have been the topic of several lawsuits. In the case of Kelley v. Kitahama, the court found that it was not the legal responsibility of the hospital’s nursing staff to establish that the patient had, in fact, been fully informed of the risks and benefits and had truly given informed consent to the procedure, as opposed to just signing off the consent form. Another case confirmed the same finding. In Giese v. Stice, the Supreme Court of Nebraska held that even if a physician gets a staff nurse to have a patient sign a surgical consent form, the liability for not telling the patient all the risks of the surgery, and for not getting truly informed consent, rests with the physician.

But in Davis v. Hoffman, while the court reiterated the same position – that the responsibility for informed consent for surgery rests with the surgeon, this case
gave us this caveat: If a nurse takes on the task of explaining the operation to the patient, and the patient is harmed because the nurse’s explanation falls short of the knowledge a nurse is expected to possess, the patient can sue the nurse for negligence. What is the best position to take when a patient asks you to explain
a surgical procedure? Tell the patient that you will not be performing the procedure, and it is best for the person who is doing it, the surgeon, to explain and answer any questions the patient might have before he signs the consent form. Then, notify the surgeon that the patient needs to talk to him (or her) before
he can sign the consent.

Where do nurses generally find the issue of informed consent in daily care? Most nurses will be asked to witness the patient’s signature on the consent form, and that signature means these three things:

The patient consented to the procedure voluntarily.
The signature is authentic.
The patient is competent to sign.

As practice evolves and nurses become involved in performing more invasive procedures, the issue of informed consent will take on new dimensions. It is always important to know the policies and forms that are used by your facility that specify your role in informed consent and to stay abreast of the changes in healthcare that might someday require that you obtain informed consent from your patients before you treat them.

Kathleen A. Lambert, RN, BSN, JD, is an attorney in private practice, specializing in tort and administrative law, in Tucson, AZ.