The Medicolegal Implications of Informed Consent in Plastic Surgery Claims
Consent is a process that protects one of the primary tenets of ethics, autonomy – the right to choose what happens to oneself. It enshrines the concept that a patient has a right to make the decision of whether or not they undertake a procedure. Therefore, before a medical procedure can take place, clinicians are required to obtain informed consent from the patient. Without consent, treatment can only be performed in an emergency setting, if it is immediately necessary to prevent the patient’s death or a serious deterioration in their condition, or if the patient is unable to provide consent. A failure to obtain proper consent is one of the most common reasons for litigation. In an increasing number of these cases, judgement is made in favour of the claimant, because, despite providing preoperative patient education, the doctor cannot prove that informed consent was given. Mr Pundrique Sharma, Consultant Plastic Surgeon, explores the medicolegal implications of informed consent in plastic surgery cases.
Where there is an allegation that informed consent was not obtained, doctors in most fields of medicine can cite the necessity to treat the claimant as a mitigating circumstance. However, cosmetic or aesthetic surgery is unique in that the majority of procedures seek to enhance the claimant’s appearance rather than treat disease and, in the medical sense, are not therefore absolutely necessary. This highlights the importance of obtaining informed consent before a cosmetic surgery procedure takes place, particularly as plastic surgeons experience dispute rates that are double those of other medical specialties.
The main aim of informed consent is to provide the patient with a better understanding of the procedure, including its implications and risks, along with any alternatives that may exist. In order to give informed consent, the claimant must have the cognitive capacity to do so. He or she should then be given sufficient information which they can retain and have a clear understanding of this information. Finally, consent must be given without undue duress or influence from others.
Research has shown that many claimants either do not understand or do not remember much of the information given to them during the consent process. There is a danger that if too much information is given, patients will become overloaded and ‘switch off’. Conversely, providing too little information may be deemed negligent. The emphasis, therefore, should be on providing adequate information to enable the patient to make a reasoned decision about whether or not to proceed. While this should include an exhaustive discussion about known risks and serious side-effects, including their likelihood and impact, it may be better to split the discussion into more than one appointment. There is also evidence that providing the patient with written information to take home avoids information overload during the preoperative consultation and helps patients to retain and understand the potential risks more clearly.
In recent years, there has been an increase in the number of different procedures available in cosmetic surgery. With a new procedure, it can be difficult to provide full disclosure of the risks where there is a lack of data on outcomes and risk cannot therefore be properly quantified. In most new procedures, however, the degree of uncertainty is relatively small: the likelihood of new and unexpected side-effects, or of dramatically overestimating the benefits of a recently introduced procedure, is low. Furthermore, general risks, such as infection, are equally applicable to new and well-established procedures.
A patient is deemed to have given informed consent if they understand the proposed procedure and, based on this knowledge, subsequently choose to proceed or decline the surgery. In order to do this, the patient must be able to relate the relevance of their own situation to the information given. Factors such as age, individual background and previous complications following surgery may all influence the outcome. However, there is no consensus on what constitutes sufficient understanding, and courts have tended to take the view that evidence of adequate disclosure by the doctor equates with patients’ understanding, despite evidence that patients comprehend significantly less about their treatment than doctors think they do.
In order to overcome the shortcomings of the informed consent process, a new approach, known as ‘Request for Treatment’ (RFT), has been suggested. In this method, the focus shifts from a patient consenting to treatment to actively requesting it. Patients are required to fill in sections of the forms that were previously completed by doctors. This requires much more understanding of the procedure and its implications than is currently the case. Furthermore, errors in understanding can not only be documented but addressed before the procedure takes place. RFT also provides more robust documentation than a standard informed consent form, as it is in the patient’s own words and clearly shows the level of the patient’s understanding. If this method was adopted, it could help to reduce the number of future claims relating to lack of informed consent.
Issues surrounding informed consent are probably more important in cosmetic surgery than in any other specialty. However, patients often do not fully understand the implications of the procedure they are undergoing. The goal must be to ensure that the patient receives sufficient information, by whatever method is most effective, to make a truly informed decision. Although it will not prevent every claim of alleged lack of consent, better communication between doctor and patient, particularly in regard to helping the patient take a more active role in decision making, may help to minimise the risk of a negligence claim relating to informed consent from arising.
About Mr Pundrique Sharma
Mr Pundrique Sharma is a Consultant Plastic Surgeon at the Alder Hey Children’s Hospital in Liverpool. Mr Sharma also set up a Nerve Reconstruction Unit at the hospital. He also has a busy private cosmetic practice based in and around the North West.
Mr Sharma accepts instructions as an expert witness in adult and paediatric cases involving general plastic surgery, reconstruction and burns surgery. He has a special interest in limb reconstruction and nerve injuries, including those following trauma and obstetrical brachial plexus injury. He can also act as an expert in cases involving cosmetic surgery across a variety of aesthetic procedures, including breast surgery, and body contouring, such as abdominoplasty and liposuction. To read more and download his CV, click here.
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Shokrollahi K. Request for Treatment: the evolution of consent. Ann R Coll Surg Engl. 2010 Mar;92(2):93-100. doi: 10.1308/003588410X12628812458851. PMID: 20353637; PMCID: PMC3025230.