Medicolegal and ethical aspects of pediatric anesthesia

Background

The notion of consent itself can be traced back to the laws of battery and trespass. In 1914 Judge Benjamin Cardozo likened assault to trespass of the body. He wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” ( ). Thus began the legal analysis of the notion of consent.

The issue of consent—and the circumstances under which a patient may be said to have consented to certain medical treatment—is an important one for physicians. Without patient consent to treatment, physicians may be sued for battery: the violation of a person’s right to be free from unwanted touching ( ). (An example is finding that an inmate’s inclusion in a medical study did not constitute offensive conduct, an element of battery, when no blood was drawn without the inmate’s consent; .) Subject to certain exceptions, such as emergencies that pose threats to a patient’s life, any willful touching of another is unlawful without valid consent from the individual or another authorized to consent on that person’s behalf ( ). The requirement of consent primarily protects the patient’s bodily integrity ( ).

Informed consent

Consent, however, gives the physician a privilege that protects him or her against liability for this tort as long as the patient is informed of the nature and consequences of treatment and gives knowing and intelligent consent to the proposed treatment the physician intends to provide ( ). “Informed consent” is designed to protect the individual’s autonomy in medical decision making; in other words, it is a real-world application of the adage that “every person has the right to determine what is done to his own body” ( ).

In turn, physicians are obligated to provide the patient with a “reasonable amount of information” for the patient to be able to make an informed decision ( ). It is worth noting here that some jurisdictions reject this approach for one that shifts the focus to what a “reasonable patient would need to know,” a standard that does not require expert testimony and thereby eases a patient’s burden of proof ( ; ). In other words, the patient must know what he or she is consenting to ( ). Informed consent is the “autonomous authorization of medical intervention ... by individual patients” ( ; ). It can really only follow after a discussion regarding the “nature of the proposed treatment procedures, possible alternative treatments, and the nature and the degree of the risk and benefits involved in accepting or rejecting treatment.” Consent is then considered “informed” when it is given “knowingly, competently, and voluntarily” ( ). It is worth noting, however, that if a physician doesn’t provide enough information to make an informed treatment and the patient consents, the physician may still be liable for negligence ( ).

Knowingly means that the physician has a duty of disclosure to provide adequate information to the patient in a manner that the patient can comprehend ( ). Adequate means “the amount and kind of information that the average person in the patient’s position would want to have in reaching an informed decision” ( ). This usually means that the clinician must fully explain the proposed procedure, the expected short-term risks and long-term consequences, the available alternatives and their risks and benefits, and the consequences of declining or delaying treatment ( ). In short, physicians must disclose all material information; that is, all “information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure” ( ; ).

Competently means that the patient has the capacity, or ability, to understand “information relating to treatment decisions and to appreciate the consequences of a decision” ( ). If a decision is be made competently, physicians must assess whether a patient can both understand the relevant medical information and make a rational decision based on that information ( ).

The voluntariness requirement simply protects the patient’s right to make healthcare decisions free from manipulation or undue influence ( ). Because of the power imbalance between a physician and the patient and the sometimes vulnerable state of the patient, there is a great danger of undue influence; as such, the manner in which physicians present information can significantly influence the relative importance the patient may attach to certain information and could persuade the patient to favor the option emphasized by the physician. Accordingly, physicians have a duty to distance themselves from their personal preferences and allow their presentation of information to reflect an objective assessment of the various interests at stake for the patient ( ).

Interestingly, the Supreme Court of Pennsylvania has considered the issue of informed consent under Pennsylvania law, and specifically Pennsylvania’s Medical Care Availability and Reduction of Error (MCARE) Act, which states that, except in emergent situations, it is the duty of a physician to obtain informed consent from a patient before certain procedures (the administration of anesthesia is a covered procedure) ( ). The court concluded that a physician cannot delegate the duty to obtain informed consent to others, and rejected the notion that disclosure to a patient by someone other than a physician—in this case, the physician’s subordinate—satisfies the duty of informed consent. The court emphasized that the relationship between a physician and patient requires direct communication between them to secure valid informed consent, as it is only through this two-way exchange between the physician and patient that the physician can achieve confidence that the patient fully comprehends the “risks, benefits, likelihood of success, and alternatives.”

Background: Consent by minor

As outlined above, competent adults are entitled to make decisions regarding their medical care themselves. But the framework of consent changes if the patient is a minor ( ). The legal framework of consent highlights the courts’ recognition that the family must be protected by a broad right of privacy, limiting government interference in the intimate family workings ( ). That right to privacy, however, is balanced by the fact that the state is permitted, in certain circumstances, to make determinations about the best interests of the child ( ). When such a conflict arises—perhaps relating to the type, length, and necessity of medical treatments for a child—the question is about who possesses the ultimate right to make a child’s medical decisions ( ). When does a minor have the right to have a voice in medical decisions regarding his or her own well-being? Even if the minor has a voice, when is that voice determinative?

An analysis of a minor’s right to participate in his or her healthcare decisions reflects a huge variation from state to state over the amount, if any, of deference given to a minor to consent or refuse medical treatment ( ). Traditionally, the view was that parents had total autonomy over a child’s medical care. That idea can be traced back to a time when children were considered the property of their parents ( ). Before that time, children had no rights, and parents reared their children without government restraint ( ). The US Supreme Court has articulated several justifications for total parental autonomy ( ; ). Primarily, they rest in the presumptions that children lack the maturity, experience, and capacity to make appropriate decisions, and that the “natural bonds of affection” between parents and children will lead parents to act in the best interest of their children ( ). Since that time, however, the Supreme Court has modified the notion of absolute parental autonomy to account for the interest of minors, particularly in the arena of healthcare decisions ( ). The idea is that there are better means for protecting parental autonomy than disregarding the desires of the children ( ; ). Jurisdictions vary in the deference given to parental autonomy over a child’s healthcare ( ).

Typically, the current view is that for most treatment provided to children, informed consent is provided by the parents or guardians. Stated another way, parental permission for medical procedures on children, when appropriate and properly secured, constitutes an exception to the general requirement of personal consent to medical treatment ( ; ). In turn, parents are required to make decisions that are in the best interest of their children; they may not make decisions for their children that are likely to cause them physical harm or otherwise impair their healthy development ( ). Parents, therefore, should be viewed as agents for their children, required to make decisions regarding medical interventions for their children in a manner consistent with the child’s best interest. Medical professionals, in turn, owe a duty to their minor patients to assist parents in making decisions that conform to that standard ( ). According to Syoboda and colleagues, to assist “parents in making decisions that comport with their child’s best interest, medical professionals must satisfy the same requirements of informed consent that apply to decision making by adults,” as outlined above. In short, a minor has the right to consent to medical treatment without third-party involvement in two key situations. First, an unemancipated minor may consent to treatment of specific types of conditions for which either the state legislature or the courts have granted such authority ( ). Such authority applies to any minor who is capable of giving meaningful informed consent and who has one of the specified medical conditions—in other words, if the minor can be said to be a “mature minor” ( ). Second, a minor who qualifies as emancipated, either by court order or on other grounds, may consent to medical treatment as if he or she were an adult ( ).

Informed consent and HIPAA

The ability to authorize disclosure of health information usually goes hand in hand with the right to give informed consent, as discussed above ( ). Accordingly, where the law recognizes the parent as the appropriate individual to give informed consent on behalf of a child, the parent may also exercise the child’s rights to disclose healthcare-related information ( ). Likewise, where the minor is authorized to consent to medical care independently, only the minor has the authority to consent to the disclosure of such information ( ).

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 and its implementing regulations, as a general statement, defer to state laws addressing the ability of a parent or guardian to obtain or otherwise disclose protected health information concerning a minor ( ). HIPAA does, however, specify the following three situations in which a parent does not function as the personal representative of the minor for the purpose of disclosing protected health information:

• 1.

  When state or other law does not require the consent of the parent or other person before a minor can obtain a particular healthcare service, and the minor consents to such service

• 2.

  When a court determines or other law authorizes someone other than the parent to make treatment decisions for the minor

• 3.

  When a parent agrees to a confidential relationship between the minor and the physician (CFR §164.502(g))