Consent to treatment: a patient's right, a therapist's duty.
The law further distinguishes between consent to the general nature of procedures and the provision of information that is more detailed, advice and warnings about treatment including risks and alternatives. This more detailed consent is known as Informed Consent and has been adopted in New South Wales since the 1990s. Informed consent goes further than the generalised consent to treatment. Informed consent requires the therapist to advise the patient fully of the procedure to be undertaken, discuss the pros and cons, the risks and side effects. The therapist should also discuss the pros and cons of alternative treatments or of no treatment at all. Armed with all this information, the patient is able to make an informed decision as to their treatment. Patients cannot make the best decision for themselves, unless they have all the facts, good and bad.
The onus is on the therapist to explain the treatment and possible outcomes in detail, not on the patient to ask for that information. The patient is empowered with knowledge and they take the responsibility of proceeding with the treatment or not. This consent must be gained before starting the treatment not during and certainly not after. If at any time the patient changes their mind and no longer consents the therapist must not continue with the treatment.
As an example, picture this scenario. A client sees a massage therapist for a therapeutic massage ater complaining of neck and shoulder pain and tension. Ater screening the client and explaining the procedure the client consents to the massage. This means that they have agreed to disrobe, lie on the massage table and allow the therapist to touch them as part of the massage. This consent may not be spoken but rather implied by the patient going ahead with the massage ater they have been told about the procedure. Getting up on the massage table implies that they want to go ahead with it. Let's take the scenario one step further.
During the massage the therapist, as a result of their skill and knowledge, decides that a particular treatment would be appropriate for this client. The therapist knows that some of the techniques they want to use can cause some side effects such as a headache, nausea and dizziness in some people This is where gaining an informed consent is required. Though the client has agreed generally to a massage, they have not consented to this particular treatment and its side effects and risks. What the massage therapist must now do is explain why they think the particular treatment would be benefit the client. They must also explain about the possibility of headaches, dizziness and nausea and the likelihood of these occurring. They must then ask the client is they are happy to go ahead with the addition of this particular treatment to the massage.
If the client is happy with it then the therapist can go ahead. If, for whatever reason, the client is not happy to agree to the particular treatment, then the massage therapist must not go ahead with it even if they think this is the best treatment option. If the patient changes their mind during the massage then the therapist must stop the particular treatment immediately, even if it would be in the client's best interest for them to continue.
In this scenario the therapist may feel that they aren't treating their client to the best of their skill and knowledge. It is acceptable for them to tell their client that, in their opinion, the particular treatment would be more effective but they can't pressure the client into accepting it.
There are formalities in relation to consent that need to be covered. First the person has to have the capacity to consent. This means that the person is an adult (over 18 years of age) and of sound mind. Children, who are over 16 years, are able to consent but a parent or guardian can override that consent. Second the consent has to be voluntary. If the patient can show that there has been some coercion or trickery in obtaining consent then it isn't valid. For example, if a person is under the influence of alcohol, drugs or any substance that could alter their reasoning, then this would be viewed as not being voluntary. One Canadian court case held that a woman who agreed to a procedure after she had been given pre-med, and before anaesthesia, had not consented to the medical procedure because it was not voluntary. She had previously refused to consent to the procedure and had only agreed when pressured by the doctor in a drowsy state.
The third requirement of consent is that it be in relation to the act performed. For example, if a patient agrees to surgery to remove their appendix, the doctors should not go ahead and remove their ovary because they thought it looked a little inflamed and were there anyway. The only exception to this is if it is a medical emergency. In a life or death emergency consent is not required for any procedure that will save the patient's life. Of course it must be a real emergency not just convenient. There is a proviso to this too. If a patient has decided that they do not want particular live-saving treatment in the event of an emergency and carry this information with them, then doctors must follow it as it is a refusal of consent that overrides the emergency.
Be aware of your client's understanding of the treatment they will be or are receiving. Don't minimise or ignore risks or side effects because you want to proceed or avoid hassles and questions. It will be much better in the end for you and your client for them to be happy with the amount of information and the choices you give them and for them to decide the outcome. Remember you must make sure that your patient understands what is happening and what will happen to them.
Ingrid Pagura BA, LLB
Ingrid is a Part Time teacher in the Massage Therapy department at Meadowbann College of TAPE and a trained lawyer She also works as a trainer for a legal publishing company
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|Title Annotation:||LAW REPORT|
|Publication:||Journal of the Australian Traditional-Medicine Society|
|Date:||Mar 1, 2011|
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