Weaponising Consent!
Consent in the medical sense has many different dimensions to it.
As far as doctors go, ultimately it involves a health practitioner being given permission to treat, examine, get a history from, put at risk from surgery, medication or any form of therapy, advise or any of a number of combinations of individual permissions for being responsible for an individual's general health, given during a treatment episode or over a period of time.
Consent is a complex web of interrelated rights and responsibilities that hangs as a metaphorical web above a deep ocean of litigation and regulatory despair for health practitioners and health institutions. Issues of consent can cost billions of dollars cumulatively to an economy and certainly many millions of dollars to individual doctors and health provider institutions.
Everyone is entitled to the sanctity of having no-one infringe upon their person and property within a free Society. That right is protected by law and custom and can only be infringed on in certain specific circumstances. The provision of health care is one of those specific circumstances. The provision of health care places people at risk, sometimes the risk is great with complex surgery and new treatments and sometimes it’s low through good fortune and circumstances. There are many bad outcomes in spite of all diligence, precautions, skill or expense. This is usually where consent, and especially the theoretic and academic nature of consent gets put under a microscope. Certain treatments have dire risks and consequences. Some surgeries are disfiguring, have many long term serious adverse consequences and may precipitate death. Some drugs can cause death through anaphylaxis or any number of other potential serious adverse effects that can be expensive. The practice of medicine as a doctor places certain obligations on a practitioner. The health and welfare of your patient is paramount. While they are under your care, especially if they are vulnerable in any way, there is a positive burden on a doctor to do what is necessary to protect and preserve the health and well-being of this patient. With institutionalised patients it could be argued that the burden is even higher. The basis of any physician-patient relationship is founded on consent and trust. It is the consent that is given by a patient for a doctor to manage a particular problem, or their health care in general. It also includes the consent to carry out any necessary examination and history taking if that were necessary. Consent for treatment may be given by a patient themselves, a parent (in the case of a minor), a legal guardian, an Enduring Power of Attorney, a Statutory Substitute Decision Maker or a competent Court.
Why is consent such a big deal? Without consent, any transgression on a person's body is tantamount to assault or battery.
You’d expect it was easy to mitigate against risks especially if they are well known and easy to deal with. Unfortunately the literature globally demonstrates that consent remains a big issue and a major driver of litigation and regulatory reporting against doctors and other health practitioners.
Amongst the few reasons that I will cover as to why consent is a big deal; weaponising consent and litigation risk are the two most dastardly.
Issues of consent can be weaponised!!!
Seems a bit far fetched, not so, it's often done, albeit surreptitiously. How and where would this happen? The health industry is a multi-trillion dollar global industry. Health and it’s management is big business.
Institutional bullying and corporate strategy often involves getting rid of competitors or employees/contractors that don’t fit the business model.
So, how does one weaponise consent? There are several ways;
Allege that consent was not given or that the consent given was defective
Allege that an act was undertaken without consent
Allege on behalf of someone else that consent was not given.
Use consent issues as vexatious reporting against targeted health practitioners.
Link damage suffered spuriously to lack of consent for medical treatment.
Link missing a diagnosis to lack of Full Informed Consent.
Use lack of Full Informed Consent amongst other causes of action in medico legal litigation.
From a litigator's perspective, a breach in consent is like mana from the heavens. The Doctrine of Full Informed Consent is arguably impossible to achieve in many circumstances, yet it forms the foundation of what doctors are judged against if held accountable.
How does a doctor protect from allegations of lack of consent? The documentation of consent in medical notes is important. For operations and sensitive examinations, written consent is advisable. Chaperones are always advised for sensitive examinations. Verbal consent, and the documentation of such should suffice in most cases, but if challenged can lead to tricky expensive litigation of essentially “he says, she says”. With vulnerable or institutionalised patients, consent from the EPOA or parent or Guardian is necessary. If a new treatment, medication, or operation was needed, then consent for such must be sought afresh. Risks, benefits and options must be discussed. The Doctrine of Full Informed Consent must be adhered to for any new or novel treatments especially in the age of Covid and Covid vaccinations.