Consent in the time of COVID-19

By Helen Turnham, Michael Dunn, Guy Thornburn, Elaine Hill, Dominic Wilkinson

Since the start of the COVID-19 pandemic, one widely discussed issue has been the diversion of medical systems to support patients with acute COVID-19 disease. This diversion inevitably reduces availability of routine and urgent treatments for non-COVID-related illness. Patients with acute surgical emergencies such as appendicitis still present for care, cancers continue to be discovered in patients, who require urgent management. Health systems are focused on making sure that these urgent needs are met. However, to achieve this goal, many patients are offered treatments that deviate from standard, non- pandemic management.

Deviations from standard management are required for multiple factors such as

  1. Limited resources (staff and equipment re-allocated)
  2. Risk of nosocomial acquired COVID-19 disease
  3. Increased risk for medical staff to undertake due to aerosolisation, eg Laparoscopic appendectomy. (The concern is that medical staff may contract COVID-19 from a patient who has early asymptomatic illness and another coincidental medical problem)
  4. Treatments requiring intensive care therapy that is in limited availability
  5. Operative procedures that are long and difficult or that are technically challenging if conducted in in personal protective equipment. The outcomes from such procedures may be worse than in normal circumstances
  6. Treatments that render patients more susceptible to COVID19 disease for example chemotherapy.

There are many instances of compromise, but some examples include open appendectomy rather than laparoscopic to reduce risk of aerosolisation, offering a Transcatheter Aortic Valve Implant (TAVI) rather than valve replacement in severe aortic stenosis (to reduce need for intensive care), offering radiotherapy rather than primary surgery for a cancer patient.

The current emergency offers unique difficulty, treatments with proven benefit might be unavailable to patients and those alternatives that are available are not best practice and might be inferior. What is ethically and legally required of the doctor or medical professional informing patients about treatment and seeking their consent to proceed? In particular, do health professionals need to make patients aware of the usual forms of treatment that are not being offered in the current setting?

Consider the following example.

Jenny is a 27 year-old model who presents to hospital at the peak of the coronavirus pandemic with acute appendicitis. Her surgeon, Miss Schmidt, approaches Jenny to obtain consent for an open appendicectomy. Miss Schmidt explains the risks of the operative procedure, and the alternative of conservative management (with intravenous antibiotics). Jenny consents to the procedure. However, she develops a post-operative wound infection and an unsightly scar. She does some research and discovers that a laparoscopic procedure would have had a lower chance of wound infection, and would ordinarily have been performed. She sues Miss Schmidt

Would a surgeon be negligent for not discussing with a patient options that would be performed in other circumstances, but are not currently available?

One question is what benefit there would be for patients to be informed about alternatives not available to them? It might be argued that information about unavailable treatments does not help the patient because it does not give them information that might help them to consent or refuse treatment that is actually available.  If Miss Schmidt had given Jenny information about the relative benefits of laparoscopic appendectomy, that could not have helped Jenny’s decision to proceed with surgery. Her available choices were open appendectomy or no surgery.

Consideration might also be paid to the effect on patients of disclosure, how much value is there in discussing with a patient with a new diagnosis of cancer that an alternative, perhaps better therapy, might be routinely available in usual circumstances but not available now? There is provision under the Montgomery ruling, in rare, circumstances, for therapeutic exception. That is, if information is significantly detrimental to the health of a patient it might be omitted. We could imagine a version of the case where Jenny was so intensely anxious about the proposed surgery that her surgeon comes to a sincere belief that discussion of the laparoscopic alternative would be extremely distressing or might even lead her to refuse surgery. However, in most cases it would be hard to be sure that the risks of disclosing alternative (non-available) treatments would be so great that non-disclosure would be justified.

In the UK, professional guidance issued by the GMC requires doctors to take a personalised approach to sharing information. The Montgomery judgment of 2015 endorsed the position of the GMC, requiring patients to be told about any material risks and reasonable alternatives relevant to the decision. The Supreme Court clarifies that materiality here should be judged by reference to a two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’.  At this time, when resources are significantly reduced, consideration must be paid to the fair treatment of all patients as well as what is owed to the individual patient.

However, perhaps the main benefit of disclosure of non-options is transparency and honesty. We suggest that the main reason why Miss Schmidt ought to have included discussion of the laparoscopic alternative is so that Jenny understands the reasoning behind the decision. If Miss Schmidt had explained to Jenny that in the current circumstances laparoscopic surgery has been stopped, that might have helped her to appreciate that she was being offered the best available management. It might have enabled a frank discussion about the challenges faced by health professionals in the context of the pandemic and the inevitable need for compromise.

Doctors should ensure that they offer appropriate medical treatment, based upon the needs of an individual. They should aim to provide available treatment that is beneficial and should not offer treatment that is unavailable or contrary to the patient best interests. They should also tailor their information to patients according to the needs of the individual, but honesty will usually be the best policy.

 

Authors: Helen Turnham1 and Michael Dunn2 Guy Thornburn1 Elaine Hill1 Dominic Wilkinson1,3

Affiliations:

  1. John Radcliffe Hospital, Oxford. Twitter: @HelenTurnham
  2. The Ethox Centre and Wellcome Centre for Ethics and Humanities, University of Oxford. Twitter: @ethical_mikey
  3. John Radcliffe Hospital, Oxford, the Oxford Uehiro Centre for Practical Ethics, University of Oxford and Murdoch Children’s Research Institute, University of Melbourne. Twitter: @NeonatalEthics

Competing interests: None declared

 

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