Xinyu Addae-Lee | Lack of informed consent

The concept of informed consent stands as a cornerstone of the ethical practice of medicine. It embodies the right of individuals to make informed and voluntary decisions regarding their own health, treatment, and participation in research activities. It safeguards human dignity, autonomy, and minimises the potential for exploitation.

Without it, quite frankly, no medical procedure is legal and can be classified as “assault and battery” under the law. Yet, the failure to obtain informed consent is more common than we think. In fact, I worry that medical procedures performed in our hospitals, especially among the most vulnerable, such as children, are mostly carried out without such consent.

WHAT IS INFORMED CONSENT

Informed consent is more than a mere formality; it is a process that involves the exchange of relevant information between a healthcare provider and a patient, and in the case of a minor, the parent or guardian of that patient. This information includes details about the nature of the proposed treatment, the most likely and most detrimental potential risks, the benefits, alternative options, and the right to decline without any repercussions. At the heart of informed consent lies the principle of autonomy. Individuals have the right to be active participants in their healthcare decisions, ensuring that they retain control over their bodies.

THE GAP

We can identify the gaps of what should be and what is. You see, it is common practice to treat a child admitted to the hospital as a “ward of the hospital”, by this I mean the parental rights are stripped away and suddenly the parent must seek the permission of the hospital personnel to see, bathe, or feed their child.

The parent/guardian is often not contacted before procedures and tests are carried out on the child, therefore, no explanation as to why the test is being performed or the procedure is being carried out ever happens and no discussion of the options available can take place. Further, the parent is almost always excluded and not able to witness the procedure being carried out.

This practice of not having the parent present for procedures must be further highlighted, scrutinised and questioned. Consent is not a one-time thing, an adult having agreed to a procedure can change their mind in the middle of it, if they think the extent to which they must suffer through the procedure is not worth the potential gain. For a child, once a parent or guardian gives consent they are taken away and if it takes 20 attempts and tens of minutes of discomfort and/or pain, the ability to withdraw that consent is absent. This is not how consent works and it is not in keeping with the best ethical practices. Children cannot give or withdraw consent and therefore should never be alone when any procedure, test or medication is being administered, unless the parent/guardian, being given the choice, states that they wish not to be present.

SILENCE IS NOT CONSENT

What must be made clear is that the lack of objection of a parent/guardian cannot be taken as consent to the carrying out of a procedure on their child. When a parent/ guardian stands by and watches in awe while their child is poked and prodded it might very well be sense of overwhelm and a lack of awareness and knowledge that they have the power, the right, to ask questions and be consulted before these things happen.

Even more, when a parent is informed after the fact, it further perpetuates the notion that somehow, they do not need to be consulted before. Most persons think this is normal and/or are so distressed that they try to go along with it in hopes that they do not affect the quality of care being offered to their child, but unfortunately this is feeding the horrific “monster” of physicians, who don’t care to seek proper consent, assaulting our children, unrestricted and unapologetically. The parents that know their rights are so few and far apart and, it being human nature to want to have things the easy way, there seems to be no desire to change this reality and make the unknowing any wiser.

UNREASONABLY WITHHELD

There are concerns that some parents/guardians will make decisions for their child which is to the detriment of the child and therefore the state needs to step in to protect the child. To this I say, there are legal channels to go through for the court to empower the senior medical officer of the hospital to make the best decision for the child. Stripping every parent/guardian of the right to consent or withhold consent to medical procedures is disproportional to the likelihood of parents making decisions to harm their child, the assumption must be and is that the parent/ guardian will act to protect the child, and therefore is quite frankly unconstitutional to deprive the child of this protection. (See Charter of Fundamental Rights and Freedoms 13(3) (k)(i))

LEGAL RAMIFICATIONS

As mentioned before performing a medical procedure without consent is classified as assault and/or battery. In the case of Chambers, Octavia v The South East Regional Health Authority and the Attorney General, 2015 JMCA 56, para 54 the learned Judge concluded:

“ Therefore, in the case at bar, any treatment performed on Mrs. Chambers, either with no consent or with uninformed consent would amount to assault. The patient must be told clearly what she is consenting to and there must be an explanation of the procedure and risks. Here I find on a balance of probabilities that Mrs. Chambers did give some consent in general terms but as it concerns the particular surgery and procedure, she was not properly informed and therefore was incapable of giving informed consent for the procedure. Her claim in assault was well founded. “

There is a thin line between helping someone and harming someone and that line is clearly drawn by the presence or absence of voluntary, willing, and knowing consent and participation.

The importance of informed consent remains a steadfast foundation in the ethical landscape of healthcare. By promoting autonomy and empowerment, informed consent aligns with the fundamental principles of medical ethics. Informed consent upholds the rights, autonomy, and dignity of individuals in medical treatment. It is a mechanism that safeguards against exploitation, ensures proper communication between healthcare providers and patients, and promotes an environment of respect and collaboration.

The most vulnerable are our children and we need to ensure that we are doing all we can to protect them. Policies that exclude parental supervision and presence must be revisited and well informed and documented consent must be sought before carrying out any procedure on a child. If we continue to proceed in this way, putting informed consent on the back burner and facilitating a society that is ignorant of it, we are going backward, toward the days of ignorance, fear and deception were used to gain compliance. In fact, I ask, are we already there?

Dr. Xinyu Addae-Lee is a medical doctor, attorney-at-law and managing director of JAXIN limited. She wishes wishes to contribute to holistic nation building. Send feedback to services@jaxinja.com and columns@gleanerjm.com