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HISTORY OF INFORMED CONSENT

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The 1957 case of Salgo vs Leland Stanford Jr. University Board of Trustees brought to the forefront the current concept of informed consent. After a lumbar aortography, Mr. Salgo suffered permanent paralysis, a known risk of such a procedure, but of which he was never informed. The judge, in stating his judgment, said, “A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by a patient to a proposed treatment.” In other words, having a patient agree to the procedure without knowledge of the relevant risks and benefits is inappropriate.

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Another landmark case was witnessed with the 1972 case of Canterbury vs Spence. Mr. Canterbury underwent a cervical laminectomy and subsequently became a paraplegic. The surgeons did not inform the patient of this unlikely risk. The courts held that the disclosure was insufficient without extenuating circumstances and suggested basing the extent of the disclosure on what is important to the patient’s decision and not customary local practice. This established the “reasonable person standard,” which requires disclosure of all material information to the extent that would satisfy a reasonable person.

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OBTAINING INFORMED CONSENT

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A signed legal document does not necessarily mean that patient has given informed consent. Patients may sign documents they do not understand. Anesthesiologists need to achieve informed consent in two senses: the legal sense and the ethical sense. Components of informed consent include an ability to participate in care decisions, to understand the pertinent issues, and to be free from control by others in making decisions.

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Decision-making Capacity

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Decision-making capacity should be assessed by anesthesiologists and other clinicians. Evidence that a person can make a decision includes the ability to understand the current situation, to use relevant information, and to communicate a preference supported by reasons. Anesthesiologists meet patients with limited decision-making capacity in three situations. The first is the patient who does not have decision-making authority (nonadult). These patients should be allowed to make decisions commensurate with their capacity and other further decisions should be made by their legal surrogate. The second situation is the patient who can usually make their own decisions but whose decision-making capacity is temporarily altered by preoperative sedation or pain medications. The anesthesiologist must then decide whether a patient can consent to anesthesia. The third situation is the patient who appears to have baseline difficulties in decision-making capacity. The anesthesiologist may wish to seek assistance from colleagues in ethics, psychiatry, and law in deciding whether the patient is sufficiently competent to proceed without legal intervention.

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There is difficulty in obtaining consent from a patient already under general anesthesia. Although as a general rule consent should be obtained from the patient only after the patient has awakened and recovered from the anesthetic, ...

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