The Role of Informed Consent as Legal Protection for Doctors in Conducting Medical Procedures

The Role of Informed Consent as Legal Protection for Doctors in Conducting Medical Procedures
Dian Fitriana
Sinergi International Journal of Law, 31 November 2023
Abstract
The field of Health Law recognizes Therapeutic transactions as an agreement between a doctor and a patient, granting authority to the doctor to provide healthcare services to the patient based on their expertise and skills. Therapeutic transactions take the form of informed consent or approval of medical procedures before they are carried out. Informed consent involves the doctor explaining to the patient the condition of their illness and the medical procedures intended to address it, in the doctor’s efforts to achieve recovery. Research findings indicate that informed consent plays a crucial role in the relationship between doctors and patients, serving as written evidence of the agreement between the doctor and the patient before medical procedures are undertaken. Informed consent can serve as the basis for proving whether a patient accepts or refuses a medical procedure, providing protection to the doctor. Legal protection for doctors is obtained as long as they carry out procedures in accordance with professional standards and operational procedures. For doctors, informed consent provides a sense of security when performing medical procedures on patients and can be used as a means of self-defense against potential claims or lawsuits from patients or their families if the medical procedure results in unintended consequences. Legal measures that doctors can take in the event of an undesired outcome related to medical procedures include attempting mediation with the patient first. If mediation fails or lacks good faith, the resolution may proceed through the legal system.

Editor’s note: The Sinergi International Journal of Law is an Indonesian publication by Yayasan Sinergi Kawula Muda.

Informed Consent and Related Civil Liability in Chinese Law: Focusing on Article 1219 of the Chinese Civil Code

Informed Consent and Related Civil Liability in Chinese Law: Focusing on Article 1219 of the Chinese Civil Code
Bai Yuanyuan
International Law Review, November 2023
Abstract
As an important guideline in Chinese medical legal system and a basic professional norm in the clinical practice, the patient informed consent is critical for enhancement of the level of Chinese medical civilization and establishment of a harmonious doctor-patient relationship. Thus, there are some revisions on the provision about the patient informed consent in the new Chinese civil code issued in 2019. In this paper the background, content and impact on medical and judicial practice of these revisions of the provisions are addressed. Article 1219 of the Chinese Civil Code about the informed consent basically follows the legal structure of Article 55 in original Chinese Tort Liability. The modifications and improvement have been made on the medical disclosure duty in three aspects: raising the standard of inform duty, enrichment of the forms of patient consent and the supplement of legal basis for “substituted consent”. The modifications of provisions about informed consent in the CCC reflect the improvement of the legislator’s understanding on patient informed consent, and are also the inevitable results of the requirements of patient informed consent in practice. Moreover, this paper analyzes the civil liability system related to informed consent. In addition, some problems in judicial practice, for example, the inconsistency of the judgment standards of the duty of medical staff to inform, the unclear definition of damage on the patients, and the incomplete analysis of causal connection, have been pointed out. This paper also discusses the special rule about burden of proof in the informed consent claim, and examines why judges tend to heavily rely on medical expertise during the trial of such cases. Finally, the causes of the above problems as well as the corresponding solutions are analyzed.

Patients’ Information before invasive coronary procedures, when signing a written consent is challenging!

Patients’ Information before invasive coronary procedures, when signing a written consent is challenging!
Kallel, O. Haddar, Y. Mallek, W. Abbes, H. Denguir, H. Barhoumi, H. Ben Ahmed
Archives of Cardiovascular Diseases, January 2024
Abstract
Introduction
Despite the progress in Invasive coronary procedures, patients‘ anxiety is still of concern. This anxiety may compromise adherence to the exam and the signature of the written consent. This latter is a relatively emergent culture to the Tunisian patient. We noticed a discordance in patients attitude expressing oral consent and reticent to sign a written one.
Objective
We investigated the role of standardized oral information in reducing anxiety of patients before invasive coronary procedures, improving knowledge and signing written consent rate.
Method
We conducted an experimental randomized, prospective study including patients scheduled for coronary artery procedures over 4 weeks. The intervention consisted in a standardized oral information. We compared the level of anxiety, the level of knowledge and the rate of written consent’s signature, before and after the intervention. Information was conducted by either a doctor or a nurse according to coin tossing randomization. Anxiety was measured with Visual analogical scale (VAS), and the State Anxiety Inventory (STAI-S). Knowledge was assessed via 10 yes or No questions about coronary artery procedure (utility, access route, X rays, Contrast solution injection, stent implantation, possible outcomes). Were excluded, patients with emergent procedures and patients that refused to participate.
Results
We included 39 patients, males in 89.7% of cases, mean age was 64.5 ± 7.8 ans. Clinical presentation was a stabilized acute coronary artery syndrome in 92.3% of cases. Patients were illiterates in 23.1%, with low instructive level in 46.2% of cases. In their history, patients were asked to sign a written consent in only 2.6% of cases. Level of anxiety evaluated via VAS was significantly improved (2.91/10 before, 2.47/10 after, p = 0.041). there was no significant difference according to STAI-S score (44.44 before, 44.85 after, p = 0.39). Level of information get better (2.94/10 before, 7.71/10 after, p < 0.0001). The rate of written consent ‘signature improved significantly from 41% to 76% (p < 0.004). There was no difference between nurse and doctor in proceeding to oral information and asking for signing the written consent (73.9% with nurse versus 86.6% with doctor, p = 0.44)
Conclusion
Oral standardized information helped to improve level of knowledge of patients ongoing non emergent invasive coronary procedures, to reduce anxiety and to get a better adherence to exam attested by the signature of the written consent. Other types of information, especially with audio-visual support, may be more efficient and need to be tested.

Parturients feel capable of giving informed consent for epidural analgesia: A qualitative and quantitative analysis

Parturients feel capable of giving informed consent for epidural analgesia: A qualitative and quantitative analysis
Oliver Bastian Christoffersen, Ann Merete Møller, Laerke Vinberg Moestrup, Kim Wildgaard
Scandinavian Society of Anaesthesiology and Intensive Care Medicine, 27 December 2023
Abstract
Introduction
The patient’s right to autonomy confirmed by informed consent is a cornerstone in modern medicine. Epidural analgesia is increasingly popular in obstetric analgesia, but physicians disagree whether labour pain impairs parturient decision-making. We investigated the fraction of parturients feeling capable of giving informed consent including their knowledge of risks.
Methods
Bedside survey postpartum women at the Herlev Hospital, Denmark. The inclusion criteria were recipient of epidural analgesia during labour. A power calculation based on the recognition of genuine and false side effects required the inclusion of 50 participants.
Results
Forty out of fifty (80%) of the participants felt they could make a judicious consent during labour and 46 out of 50 (92%) felt they knew enough about epidural analgesia to give consent to the procedure again if necessary. Participants spontaneously reported a median of two risks associated with epidural analgesia. Additionally, when prompted with a cued list of true and false risks from epidural analgesia, the participants reported on average 5.1 genuine risks compared with 0.4 made-up risks. The difference (4.7) suggests the included women could discern genuine risks from made-up risks.
Discussion
The majority of participants reported the capacity to give informed consent. Our quantitative results show the participants could clearly distinguish genuine risks of epidural labour analgesia from made-up risks. Our qualitative data likewise suggest that participants understood the information and consequently their informed consent was genuine. Accordingly, parturients are able to give informed consent. This is supported by parturients’ ability to identify risks from epidural labour analgesia.

Should Obtaining Informed Consent Be Considered an Entrustable Professional Activity? Insights From Whether and How Attendings Entrust Surgical Trainees

Should Obtaining Informed Consent Be Considered an Entrustable Professional Activity? Insights From Whether and How Attendings Entrust Surgical Trainees
Research Report
Erin M. White, Andrew C. Esposito, Peter S. Yoo
Academic Medicine, 19 December 2023
Abstract
Purpose
Because residents are frequently delegated the task of obtaining consent early in their training, the American Association of Medical Colleges describes “obtaining informed consent” as a core entrustable professional activity (EPA) for medical school graduates. However, prior studies demonstrated that residents frequently perform this task without receiving formal instruction or assessment of competency. This study sought to understand how attending physicians decide to delegate obtaining informed consent for surgical procedures to trainees.
Method
The authors conducted a survey of attending surgeons at a university-based health care system of 6 affiliated teaching hospitals (October–December 2020) to collect data about current entrustment practices and attendings’ knowledge, experience, and attitudes surrounding the informed consent process. Summary statistics and bivariate analyses were applied.
Results
Eighty-five attending surgeons participated (response rate, 49.4%) from diverse specialties, practice types, and years in practice. Fifty-eight of 85 (68.2%) stated they “never” granted responsibility for the consent conversation to a trainee and 74/81 (91.4%) reported they typically repeated their own consent conversation whenever a trainee already obtained consent. The most common reasons they retained responsibility for consent were ethical duty (69/82, 84.1%) and the patient relationship (65/82, 79.3%), while less than half (40/82, 48.8%) described concerns about trainee competency. Reflecting on hypothetical clinical scenarios, increased resident competency did not correspond with increased entrustment (P = 0.27 – 0.62). Nearly all respondents (83/85, 97.7%) believed residents should receive formal training, however, only 41/85 (48.2%) felt additional training and assessment of residents might change their current entrustment practices.
Conclusions
Attendings view informed consent as an ethical and professional obligation that typically cannot be entrusted to trainees. This practice is discordant with previous literature studying residents’ perspectives. Furthermore, resident competency does not play a predominant role in this decision, calling into question whether informed consent can be considered an EPA.

Informed Written Consent for Emergency and Elective General Surgery at a Model 4 Hospital: A Closed-Loop Audit

Informed Written Consent for Emergency and Elective General Surgery at a Model 4 Hospital: A Closed-Loop Audit
Ke En Oh, Nikhil Vasandani, Afiq Anwar, Babak Meshkat
Cureus, 27 November 2023; 15(11)
Abstract
Introduction
The objective of this investigation was to conduct an audit of the consent form standards signed by patients before elective or emergency general surgery at our institution. The investigation involved a comparison of these standards with those outlined in the “HSE National Consent Policy 2022” established by the Health Service Executive (HSE) and the Royal College of Surgeons in Ireland (RCSI). In the event of discrepancies, we intended to complete the audit loop by educating general surgeons on the essential standards for obtaining written consent in both elective and emergency general surgical procedures.
Methods
To assess the quality of patient consent, a pre-interventional phase was conducted over one week. Information was gathered exclusively through electronic medical record systems. Subsequent to the data analysis, an in-person educational session was conducted to enlighten non-consultant hospital doctors (NCHDs) in surgery about the significance of informed written consent and the criteria for lawful consent according to local guidelines established by the HSE and the RCSI. Three months following the intervention, a follow-up cycle was carried out to evaluate whether there were any improvements in the standards of consent.
Results
In the initial phase, prior to intervention, a total of 95 consent forms were collected. The patient’s name, date of birth (DOB), and hospital board number (BN) were accurately recorded in all consent forms. However, only 66% (n=63) were accurately documented without the use of abbreviations or acronyms. Following the intervention, 145 consent forms were gathered. All appropriately indicated the patient’s name, DOB, and BN. However, 84% (n=122) of consent forms were correctly labeled without the use of abbreviations or acronyms (p=0.0017).
Conclusion
This closed-loop review illustrates that the quality of consent can be notably enhanced through a straightforward educational intervention led by NCHDs in general surgery. Such interventions can be instructive, leading to improved consent form documentation. This, in turn, enhances patient safety and helps prevent potential medico-legal repercussions for both healthcare providers and institutions.

Foundations of Preemptive Compassion: A Behavioral Concept Analysis of Compulsion, Consent, and Assent

Foundations of Preemptive Compassion: A Behavioral Concept Analysis of Compulsion, Consent, and Assent
Anna M. Linnehan, Awab Abdel-Jalil, Sheila Klick, Jonathan Amey, Richele Yeich, Kyle Hetzel
Behavior Analysis in Practice, 15 December 2023
Abstract
The recent changes to the Behavior Analysis Certification Board Ethics Code for Behavior Analysts along with the calls to action for compassionate care have highlighted the need for a reevaluation of behavior research and clinical programs. We propose a behavior analytic definition of compassion where the relieving or prevention of distress is the reinforcer for the professional. One way of minimizing distress may be to require that assent be provided by a participant in an intervention. The definition of assent typically includes reference to willingness to participate in an intervention or activity. We provide a framework that goes beyond simple willingness to participate and distinguishes between apparent/implicit coercion and genuine assent by considering the alternatives described as degrees of freedom available to the participant. We distinguish between compulsion/explicit coercion, consent, and assent. Additionally, we will differentiate genuine consent and assent from apparent consent and assent in the design of compassionate behavioral programs.

Editor’s Note: [Excerpts from Ethics Code]
2.11 Obtaining Informed Consent
Behavior analysts are responsible for knowing about and complying with all conditions under which they are required to obtain informed consent from clients, stakeholders, and research participants (e.g., before initial implementation of assessments or behavior-change interventions, when making substantial changes to interventions, when exchanging or releasing confidential information or records). They are responsible for explaining, obtaining, reobtaining, and documenting required informed consent. They are responsible for obtaining assent from clients when applicable
6.04 Informed Consent in Research (see 1.04, 2.08, 2.11)
Behavior analysts are responsible for obtaining informed consent (and assent when relevant) from potential research participants under the conditions required by the research review committee. When behavior analysts become aware that data obtained from past or current clients, stakeholders, supervisees, and/or trainees during typical service delivery might be disseminated to the scientific community, they obtain informed consent for use of the data before dissemination, specify that services will not be impacted by providing or withholding consent, and make available the right to withdraw consent at any time without penalty.

Identifying facilitators of and barriers to the adoption of dynamic consent in digital health ecosystems: a scoping review

Identifying facilitators of and barriers to the adoption of dynamic consent in digital health ecosystems: a scoping review
Research
Ah Ra Lee, Dongjun Koo, Il Kon Kim, Eunjoo Lee, Hyun Ho Kim, Sooyoung Yoo, Jeong-Hyun Kim, Eun Kyung Choi, Ho Young Lee
BMC Medical Ethics, 1 December 2023; 24(107)
Open Access
Abstract
Background
Conventional consent practices face ethical challenges in continuously evolving digital health environments due to their static, one-time nature. Dynamic consent offers a promising solution, providing adaptability and flexibility to address these ethical concerns. However, due to the immaturity of the concept and accompanying technology, dynamic consent has not yet been widely used in practice. This study aims to identify the facilitators of and barriers to adopting dynamic consent in real-world scenarios.
Methods
This scoping review, conducted in December 2022, adhered to the PRISMA Extension for Scoping Reviews guidelines, focusing on dynamic consent within the health domain. A comprehensive search across Web of Science, PubMed, and Scopus yielded 22 selected articles based on predefined inclusion and exclusion criteria.
Results
The facilitators for the adoption of dynamic consent in digital health ecosystems were the provision of multiple consent modalities, personalized alternatives, continuous communication, and the dissemination of up-to-date information. Nevertheless, several barriers, such as consent fatigue, the digital divide, complexities in system implementation, and privacy and security concerns, needed to be addressed. This study also investigated current technological advancements and suggested considerations for further research aimed at resolving the remaining challenges surrounding dynamic consent.
Conclusions
Dynamic consent emerges as an ethically advantageous method for digital health ecosystems, driven by its adaptability and support for continuous, two-way communication between data subjects and consumers. Ethical implementation in real-world settings requires the development of a robust technical framework capable of accommodating the diverse needs of stakeholders, thereby ensuring ethical integrity and data privacy in the evolving digital health landscape.

Study of Informed Consent Rules in Face Recognition

Study of Informed Consent Rules in Face Recognition
Linxi Yang
Journal of Humanities, Arts and Social Science, 27 November 2023
Abstract
The advent of the era of big data is an irreversible trend. With the development of network technology, personal information has become closely integrated with various social fields, encompassing technologies for information capture, transmission, and storage. Daily applications, access to places, and face recognition technology play an indispensable role in various aspects. However, while enjoying the convenience brought by information technology, the protection of personal information also faces inevitable challenges. Informed consent rules are studied to address the issues that arise in the information society, such as the lack of sufficient information for individuals, unreasonable consent practices, and unclear handling of personal information dynamics. In order to address these shortcomings, the notification method in informed consent rules needs to be improved to effectively protect personal information. This will allow for better protection of personal information security while still utilizing the convenience provided by facial recognition technology in a reasonable manner.

Upcoming Calls For Public Consultation

We will selectively include calls for public consultation from multilateral agencies, governments, INGOs and other sources where there is a clear intersection with consent/assent. This might be obvious from the title of the draft guidance, regulations, etc., but more often, it will be a thematic area or topic – if properly addressed at all. If you would like to explore participation with our working group developing submissions for these calls, please contact us [david.r.curry@ge2p2global.org].

 Master Protocols for Drug and Biological Product Development; Draft Guidance for Industry; Availability
Food and Drug Administration, HHS.
Scheduled Pub. Date: 12/22/2023   FR Document: 2023-28210   PDF: https://downloads.regulations.gov/FDA-2023-D-5259-0002/attachment_1.pdf     8 Pages (109 KB)
Submit either electronic or written comments on the draft guidance by February 20, 2024
Summary
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Master Protocols for Drug and Biological Product Development.” The draft guidance addresses the design and analysis of trials conducted under a master protocol as well as the submission of documentation to support regulatory review. The primary focus is on randomized umbrella and platform trials that are intended to contribute to a demonstration of safety and substantial evidence of effectiveness. The considerations in this guidance apply to a range of therapeutic areas. The draft guidance is intended to clarify the Agency’s thinking on the use of master protocols in drug and biological product development, which was previously addressed in FDA’s guidance entitled “COVID–19: Master Protocols Evaluating Drugs and Biological Products for Treatment or Prevention.” FDA is also announcing the withdrawal of the guidance entitled “COVID–19: Master Protocols Evaluating Drugs and Biological Products for Treatment or Prevention.
Excerpt
250  C. Informed Consent
252  The informed consent process should cover all treatment arms in the trial to which the subject
252  could be randomized.13,14 In a platform trial allowing drugs to enter and leave the trial over time,
253  the consent form should be modified over time to reflect the drugs currently under evaluation…
256  The informed consent process should occur prior to a subject’s randomization and avoid
256  substudy-specific consent. Consent that occurs after subjects have been randomized to one of the
257  substudies may result in subjects with different prognostic characteristics across substudies,
258  raising concern about the comparability of each drug group with the shared control group
259  (comprised of control subjects from different substudies). To illustrate the concern, consider a
260  master protocol with two drugs (drug A and drug B) in which the subject consents to screening
261  and randomization to a substudy as part of the master protocol, with a substudy-specific
262  informed consent process to occur after randomization to that substudy; after the substudy-
263  specific consent, the subject is then randomized to the drug or its matched control. With this
264  process, comparing drug A against the shared control arm (including subjects who received
265  either control for drug A or control for drug B) may result in noncomparable groups if subjects
266  who would consent to participating in the drug A substudy differ from subjects who would
267 consent to participating in the drug B substudy.

13 Some consent processes allow a subject to be randomized in the trial even if the subject only consents to a subset of the drugs under evaluation; under such a process, subjects should not have the potential to be randomized to drugs for which they do not consent.
14 See the guidance for IRBs, Clinical Investigators, and Sponsors Informed Consent (August 2023).