Informed Consent
Comprehension
It is essential to ensure that the patient understands all the information given.
Many studies have shown though that patients do not understand or remember very well the information they were given during a medical consultation.
Verbal Communication
Demonstrated in Canadian case:
Adan v. Davis [1998] O.J. No. 3030
Plaintiff was a Somalian refugee and could not speak English. In March 1992, she gave birth to her fourth child and a few weeks late developed an infection. A draining procedure was performed.
In April 1992 the plaintiff visited the defendant with an interpreter as she had a recurrent infection. The defendant believed that she had consented to a tubal ligation. The tubal ligation was preformed with further drainage of the infection in May 1992.
The plaintiff said that she never requested the sterilization and thought she was consenting to a further procedure to clean her infection. The interpreter did not recall discussing a tubal ligation procedure. There was no word for sterilization in the Somali language and the word would be translated as "clean".
The plaintiff visited the defendant one year later and learned about the sterilization. She was separated from her husband and one of her children had died. Sterilization was against her religious beliefs and a barrier to her ability to remarry.
The action was allowed and the plaintiff was awarded $80,000 in damages.
The court held that on the basis of the evidence, it was inherently unlikely that she requested a sterilization procedure. Even if she did, the defendant did not discharge the burden of informing the patient as to the relevant details of the procedure, including its irreversible nature, particularly given her inability to speak English. The doctor failed to take reasonable care to obtain her consent. Given the cultural implications of the sterilization on her life, the circumstances warranted a substantial award.
Written Communication
A signed informed consent form is of no use, unless it can be demonstrated that the patient had read and understood the contents.
Printed information should be accurate and if possible non-technical in terminology.
Finch v Carpenter:
Oral surgeon was held not to have properly informed the patient of the risk of impacted wisdom teeth becoming displaced into the sinus cavity during an extraction. The surgeon had given the patient a one page information sheet which stated " Entry into the maxillary sinus in the case of some impacted teeth in the upper jaw". The judge ruled that the warning was insufficient since it was given in technical language and appeared towards the end of the document.
It may be helpful to give written information prior to any treatment, request that the patient reads the information and then organize a further meeting to discuss any parts of the document that "doesn't make sense, they don't remember discussing previously or that they are unhappy about."
