Getting Informed Consent - More Than Just a Signature
Pollack, Daniel, Policy & Practice
A 72-year-old woman developed gangrene in her feet after prolonged exposure to cold weather. With no relatives or friends to consult, she refused medical advice to have her feet amputated, a life-saving operation. Eventually, social workers for the Department of Human Services brought a court order to force the woman to have the operation. What considerations and procedures did they follow to obtain the woman's consent or to decide to override her decision?
Justice Benjamin Cardozo wrote in an early landmark case, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body..." (Schloendroff v. Society of New York Hospitals, 1914).
Numerous articles have been written regarding the meaning and intricacies of the doctrine known as "informed consent." As the U.S. Department of Health and Human Services writes, "informed consent means the knowing consent of an individual or his legally authorized representative, so situated as to be able to exercise free power of choice without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion." [39 Fed. Reg. 18913]. This doctrine is founded on the notion that clients can make informed decisions only if they know and understand what the worker proposes to do, what the treatment risks are, and what alternative treatment actions are available.
Human service workers, like doctors, lawyers, and accountants, often have unequal relationships with their clients. The client is dependent, yet the worker is taught to respect and protect the client's autonomy. The client enters into a contract with the worker for a service, yet the latter must not take advantage of the disparity in knowledge and expertise.
In these litigious days, a human service employee has good reason to be fearful of liability. So how, what kind, and how much information needs to be shared with the client for a human service worker to feel secure that informed consent was obtained? There is, of course, no one answer to this question, but a checklist of ideas may be helpful:
* Is the worker behaving according to the professional norms existent at the time? …