The dignity of a person demands respect to his/her individuality. In practice, the respect for individuality is represented in that every person has the right to make own choices. The possibility to make own choice, i.e. to be the master of own life, can be related to the idea of autonomy which can be defined as “self-governance or self-rule, a capacity of people to reflect and choose, and freedom to express individual aspirations and preferences” (Delany, 2005, p. 197). In the field of healthcare, the latter is represented in one of bases for the ethical problem of informed consent. The ethical dimension of informed consent can be seen in the polarity of truth telling and information disclosure, both of which has ethical concerns. Such concerns can be formulated as the statement that the patient cannot be treated without his informed consent. In that regard, informed patient maintains his/her autonomy, making rational decisions, and eventually agrees to live with the consequences of the intervention. In that regard, the scope of informed consent cannot be overestimated, having ethical and legal dimensions, its significance can be seen in the inclusion as one of the main legal topics of the American Medical Association (AMA) (AMA, 2010). In that regard, the present paper addresses the issue of informed consent, specifically in the context of nursing care, providing a thorough analysis of its theoretical and practical foundations, and providing an insight into its influence and implications.
Assessing the concept of informed consent in a historical perspective can be hindered by the fact that the evidences of informed consent in medical practice might not confirm to the present definitions of each of term components of the term. In that regard, despite the assertion that “truth telling and consent-seeking have long been part of an indigenous medical tradition”, the views of the nineteenth century “differed in both content and purpose from those entailed by “modern concepts of informed consent”” (Faden, Beauchamp, & King, 1986, p. 56).
The philosophic roots of informed consent and autonomy might be even deeper than the past two centuries, where the medieval and Renaissance ideas about the sovereignty of the state as well as the works of Adam Smith and John Stuart Mill might be influential in focusing on the individual (Ahronheim, Moreno, & Zuckerman, 2005, p. 20). On the other hands, the legal context such problem might not be as old, where according to psychiatrist Jay Katz, any legal pronouncement of informed consent is “only 25 years old” (Katz & Capron, 2002, p. 2). Despite the doctrine of informed consent taking its legal form from the 1970s, the precedential examples of landmark cases show earlier coverage of such themes, where Pratt v. Davis (1905) and Schloendorff v. The Society of the New York Hospital (1914) were among the earliest and the most quoted cases, in which the patients’ rights were reaffirmed, although merely in terms of uninvited contacts; “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 a patient’s consent commits a battery” (Katz & Capron, 2002, p. 50). In the most recent context, the legal doctrine recognizes two forms of consent, implied and expressed, with the latter being preferable, although the document might be only regarded as evidence that the patient agreed to the procedure (Green, 1999). As in the case of Chatterton v. Gearson (1981), informed consent shall be extended to informing the patient of the nature of the intervention, with the failure to do so being considered negligence.
In terms of stakeholders, it can be stated that the participants involved in such ethical dilemma might parties other than the physician, the nurses and the patient. The role of nurses can be specifically emphasized considering that they are most likely to be involved in hearing the concerns of the patients regarding the intervention in question. The role of the physician can be seen in the assessment of the patient’s condition, relieving his/her pain, and maximally retain the patient’s quality of life. Other stakeholders might include the patients’ relatives, whose position should be considered, specifically, in cases when consent is hard to obtain, and the administration of the hospital in question, where the legal disputes regarding claims of negligence can be seen influential toward the hospital’s reputation.
With the informed consent being a legal requirement in most healthcare institutions, it can be seen that the main ethical problem lies in the information provided to the patient, based on which the consent can be obtained. In that regard, the arguments for and against the informed consent in healthcare can be evaluated through truth telling, i.e. the practice of disclosing information truthfully to the patient, as one of the elements of the content of the definition of informed consent. The main argument for obtaining informed consent through telling the truth can be seen in the ethical principle of autonomy. Thus, deceiving the patient by providing incomplete information “diminishes the patient’s ability to be autonomous, and fails to show respect for persons” (Tuckett, 2004, p. 505). Other advantages might be seen through the physical and the psychological benefits that might be resulted from the patient intention to cooperate, knowing the details regarding the intervention, and accordingly, the avoidance of the feelings of mistrust, which might be the result of the discovery of deceptive practices (p. 506).
The arguments against truth telling in informed consent can be seen in the fact that absolute truth is “rarely achieved in medicine” (Tuckett, 2004, p. 506), a science filled with uncertainties, specifically in diagnoses. In that regard, a point is made by Nachman (cited in Tuckett (2004)) that “one must be careful to distinguish the notion of ‘truth’ as ‘the way things really are’ (so-called objective truth) from that of ‘truth’ as ‘the way a person believes things to be’” (p.506). Additionally, other arguments against informed consent might be seen in the hierarchical structure in health care institutions, where nursing staff are used to “receiving and carrying out instructions issued from above, and, for their part, to giving instructions to those hierarchically below them” (Schopp et al., 2003, p. 50). In that regard, with the informed consent allowing refusal, specifically with elderly patients who are have decisional impairments, the support for the autonomy might less followed in such cases.
As stated in Edwards (1996), there are different theories that determine whether particular action is right or wrong. The two influential schools of thought, used as a moral measure for action, are consequentialism and deontology. In Singleton and McLaren (1995), it was stated that the consequentialist theory by Mills determines if an action is the right thing to do through examining the consequences of performing such action. Although several types of this theory exist, the most famous version is utilitarianism. The principle of utility works on the basis that actions can be only judged by their consequences and are decided on the basis of the greatest good for the greatest number.
With regard to autonomy, the utilitarian argument is that such respect would maximize happiness. If individuals are given the freedom to act autonomously they will be happier. However, it is argued that the obligation to respect people’s autonomy holds only as long as it does no harm to others (Singleton and Mclaren 1995). Accordingly, in Rumbold (1999), it was argued that the theory of deontology by Kant states that duty is the foundation of morality and that an act can be judged as either morally right or wrong, irrespective of the consequences that are produced. With regard to autonomy Kant (1973) argues that respect for autonomy is a universal law, and is supported by the concept of respect for persons. However, Kant suggests that respect for autonomy of any individual has to be seen within the context of respect for the autonomy of all his rights.
Ethical Decision-Making Process
Having any factors involved in making an ethical decision regarding informed consent can be facilitated through the availability of rules and guidance, directing the decision making process. In that regard, following the ethical decision model, identifying the problem as a dilemma of obtaining the consent of the patient or not, or disclosing all the information on an intervention, the next step should be the identification of the potential issues involved (Forester-Miller & Davis, 1996). The potential issues involved include the moral principles, such as autonomy, nonmaleficence, beneficence, justice, and fidelity” (Forester-Miller & Davis, 1996). It should be noted that although in the case of informed consent, all of the latter is involved. With the identification of the issues involved, the practitioner might consult the code of ethics, which in the case of nursing staff, can be seen in the international code of ethics for nurses, developed by ICN, and the code of ethics for nurses, developed by the American Nursing Association (ANA, 2010; ICN, 2006).
Accordingly, potential courses of actions might be developed, in case there is no option determined by the legal and the ethical framework, after which all the options should be evaluated based on consequences choosing the best course of action. In the case of an informed consent, it should be stated that the ethical decision making process is superseded by the legal framework guiding the principles of actions, although several exceptions might be made, according to which an ethical evaluation might be made after all. The latter can be seen in some studies, where US federal regulations and institutional review boards (IRBs), might waive the requirement for informed consent, given that: 1) “the research involves no more than minimal risk; (2) the waiver will not adversely affect the rights and welfare of participants; and (3) the research could not practicably be carried out without the waiver” (Higgins & Daly, 2002, p. 664). Considering that medicine is an experimental science in itself (Rumbold, 1999, p. 133), there are many situations to which such requirements might be applied.
The factors that might be involved in making the decision can be seen in several dimensions. Accordingly, with the informed consent taking a legal context, these dimensions might be seen in a legal context as well. One of the factors can be seen in the previously mentioned structural hierarchy in the health care, where the nurse might be given the directives not to tell the patients specific information. As nurses are expected to follow the orders in the hierarchy, such factor should not be underestimated. Additionally, the factor of therapeutic exception can be influential as well, where the physician might believe that the harm from information conveyed might outweigh the benefit of having comprehensive information (Ahronheim, et al., 2005, p. 22). In such cases, it might be required to document such cases, and the reasons for the physicians to have such belief. Other factors might involve the preferences of the patients being harmful to him or being connected to any societal obligations.
The diversity of the population as a factor in obtaining informed consent can be seen mainly connected to the existent or assumed communication and cultural barriers. The latter most explicitly was documented through the book by Ann Fadiman The Spirit Catches You and You Fall Down (1997), where the cultural miscommunication might lead to tragic consequences (Fadiman, 1997). In that regard, the concerns of nurses dealing with multi-culturally diverse population might imply such dilemmas, where giving information in full detail might be hindered by the availability of interpreters, the expertise of the interpreter, and the long lines and the busy schedules of many clinics. Accordingly, such factor a greater responsibility on the nursing staff involved, in cases where informed consent should be obtained.
The factors of diverse staff can be also seen as an influential factor, specifically in a country with high immigration rates and multicultural background such as the United States. In such case, it should be mentioned that the nurses take the responsibility to follow the corresponding legal framework of the country they are residing in and the code of ethics accepted in their respective organization. Moreover, diverse staff can be a positive factor, influential in the communicative process with diverse population, considering the cultural beliefs and practices of the patients, and acting as an interpreter with an expertise to deliver the message in a qualified manner.
Codes of Ethics
As stated previously, the following the code of ethics has a large influence on the decision making process of an ethical problem such as informed consent. In that regard, the code, although not removing the responsibilities from the nursing staff, provides the general guidelines for making the decisions. For example, the provisions regarding informed consent might contain broad terms such providing “sufficient information to permit informed consent and the right to choose or refuse treatment” (ICN, 2006), where the terms sufficient might of the responsibility of the nurse and the physician to determine considering the circumstances involved. Accordingly, the framework might also involve such specifics as giving the opportunity to ask questions, having a discussion regarding the purpose and the nature of the treatment, etc (AMA, 2010). Additionally, it should be noted that informed consent is a legal requirement as well, which in the case of US, “spelled out in statutes and case law in all 50 states” (AMA, 2010). In that regard, where the code might provide a general framework, the legal framework and the cases might provide detailed information, regarding the specifics, and the exceptions which might guide the ethical decision process, which in turn will facilitate solving the ethical problem for all the stakeholders involved.
Impact on Healthcare Industry
In general, following the doctrine of informed consent, as ascribed by the codes and legislation, will serve make the industry of health care more patient-centered. The welfare of the patient is the main goal of the health care industry, and in that regard, assessing its ethical problems, will help establishing the relation between health care and patients to be oriented toward the latter. Additionally, informed consent can be seen as one of the main evidences of the abandonment of the ideas of paternalism, where giving the autonomy of the patient a greater priority than the parental like decisions of the professionals in the healthcare industry. Nevertheless, it can be assumed that the current framework might be still subject to interpretation, and thus, the exceptions in many situations might require strict policies, which will provide sufficient details regarding the broad terms of ethical conduct.
Potential Policy Implications
The policy implications can be seen in the situations that imply that influence the ethical decision making process for the staff. Touching briefly, on the issue of miscommunication, cultural differences, and elderly people, it can be stated that the efforts of future policies should be directed toward overcoming any obstacles created by such factors. Multicultural training, the provision of interpreters, and establishing the boundaries for nurses competences in persuading and informing the patients might be one of the directives in such cases. Accordingly, there is an apparent need for training programs, considering that every concrete situation cannot be accounted for in nursing practice, nurses should learn how consider the ethical context of the clinical practice. Informed consent is a significant issue to ignore, and approaching it a merely a signature put by the patient is major underestimation of all the ethical factors involved.
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