DisclosureTo make health care decisions and work intelligently in partnership with the physician, the patient must be well informed. Effective patient-physician communication can dispel uncertainty and fear and can enhance healing and patient satisfaction. Information should be disclosed whenever it is considered material to the patient’s understanding of his or her situation, possible treatments and probable outcomes. This information often includes the costs and burden of treatment, the experience of the proposed clinician, the nature of the illness and potential treatments.
However uncomfortable to clinician or patient, information that is essential to the patient must be disclosed. How, when and to whom information is disclosed are important concerns that must be addressed.
Information should be given in terms that the patient can understand. The physician should be sensitive to the patient’s responses in setting the pace of disclosure, particularly if the illness is very serious. Disclosure should never be a mechanical or perfunctory process. Upsetting news and information should be presented to the patient in a way that minimizes distress. If the patient is unable to comprehend his or her condition, it should be fully disclosed to an appropriate surrogate.
In addition, physicians should disclose to patients, information about procedural or judgment errors made in the course of care if such information is material to the patient’s well-being. Errors do not necessarily constitute improper, negligent or unethical behavior, but failure to disclose them might become so.
Informed ConsentAny unauthorized touching of a person is battery, even in the medical setting. The patient’s consent allows the physician to provide care. Consent may be either expressed or implied. Expressed consent most often occurs in the hospital setting, where written or oral consent is given for a particular procedure. In many medical encounters, when the patient presents his case to a physician for evaluation and care, consent can be presumed. The underlying condition and treatment options are explained to the patient and treatment is rendered or refused. In medical emergencies, consent to treatment that is necessary to maintain life or restore health is usually implied unless it is known that the patient would refuse the intervention. The doctrine of informed consent goes beyond the question of whether consent was given for a treatment or intervention. Rather, it focuses on the content and process of consent.
The physician is required to provide enough information to allow a patient to make an informed judgment about how to proceed. The physician’s presentation should be understandable to the patient, should be unbiased and should include the physician’s recommendation. The patient’s or surrogate’s concurrence must be free and uncoerced. The principle and practice of informed consent relies on patients to ask questions when they are uncertain about the information they receive, to think carefully about their choices and to be forthright with their physicians about their values, concerns, and reservations about a particular recommendation. Once patients and physicians decide on a course of action, patients should make every reasonable effort to carry out the aspects of care that are in their control or to inform their physicians promptly if it is not possible to do so. The physician is obligated to ensure that the patient or the surrogate is adequately informed about the nature of the patient’s medical condition and the objectives, alternatives, possible outcomes and risks involved with a proposed treatment.
All adult patients are considered competent to make decisions about medical care unless a court declares them incompetent. In clinical practice, however, physicians and family members usually make decisions without a formal competency hearing in the courts for patients who lack decision-making capacity. This clinical approach can be ethically justified if the physician has carefully determined that the patient is incapable of understanding the nature of the proposed treatment, the alternatives to it and the risks, benefits and consequences of it. When a patient lacks decision-making capacity (that is, the ability to receive and express information and to make a choice consonant with that information and one’s values), an appropriate surrogate should make decisions with the physician. Ideally, surrogate decision makers should know the patient’s preferences and act in the best interests of the patient. If the patient has designated a proxy, as through a durable power of attorney for health care, that choice should be respected. When patients have not selected surrogates, standard clinical practice is that family members serve as surrogates. Some states designate the order in which family members will serve as surrogates. Physicians should be aware of legal requirements in their state for surrogate appointment and decision making. In some cases, all parties may agree that a close friend is a more appropriate surrogate than a relative. Physicians should take reasonable care to ensure that the surrogate’s decisions are consistent with the patient’s preferences and best interests. When possible, these decisions should be reached in the medical setting by physicians, surrogates and other caregivers. Physicians should emphasize to surrogates that decisions should be based on what the patient would want, not what surrogates would choose for themselves. If disagreements cannot be resolved, hospital ethics committees may be helpful. Courts should be used when doing so serves the patient, such as to establish guardianship for an unbefriended, incompetent patient, to resolve a problem when other processes fail, or to comply with state law.
Decisions about ReproductionThe ethical duty to disclose relevant information about human reproduction to the patient may conflict with the physician’s personal moral standards on abortion, sterilization or contraception. A physician who objects to these services need not become involved, whether by offering advice to the patient or by involvement in a procedure. As in any other medical situation, the physician has a duty to refer the patient to an appropriate source for the full range of options so that the patient’s legal options are not constrained.
If a patient who is a minor requests termination of pregnancy, advice on contraception or treatment of sexually transmitted diseases without a parent’s knowledge, the physician may attempt to persuade the patient of the benefits of having parents involved, but should be aware that a conflict may exist between the legal duty to maintain confidentiality and the obligation toward parents or guardians. Information should not be provided to others without the patient’s permission. In such cases, the physician should be guided by his or her conscience in light of the law.