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Some Legal Issues in

Clinical Practice (Consent)

Aitkenhead AR, The Pattern of Litigation Against Anaesthetists.
BJA 1994, 1993; 73:10-21

3000
2500

2475

2000
1500
1000
500

1068
760
371
121

0

87

61

59

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12

9

7

7

6

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Files Opened 2003-2012
World Anaesthesia (MPS Data)

Williams OA, Patient knowledge of operative care.
Journal of the RSM. 1993. 86(6): 328-31.

Questionnaire prior to pre-op visit
Information received & patient satisfaction
Anaesthesia: 64% spoke to “nobody”
beforehand
62% received no information
59% would have liked more

Nurses (40%) most frequent providers

What makes a good consent form

HIPPOCRATES
• “Perform your duties calmly and adroitly,
concealing most things from the patient while
you are attending to him… turning his attention
away from what is being done to him …
revealing nothing of the patients future or
present condition”
• Hippocrates, Decorum. Havard UP, MA 1967: 267.

CONSENT IS ADVICE
• In Past Drs = No duty to provide information
• Hippocrates – Physicians take active steps to
conceal information from patients
• Providing information may cause distress,
confusion and jeopardise recovery
• Limited information
• Silence and ? Deception
 Hatcher v Black (Times, 2July 1954)
 Denning “His Peers did not condemn him and
neither should we”

Paternalistic approach – Dr-centric

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Autonomy – Patient Centric



Schloendorff v Soc. Of New York Hospital (1914)
Hucks v Cole (1993)
Rogers v Whittaker (1992), Chappel v Hart (1998)
Hong Chuan Lay v Dr Eddie Soo Fook Mun (1998)

 “.. It was for the court, and not medical men,
to judge the adequacy of information
disclosed…”

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Patients Expectation

• Akkad (2006)
– 88% = legal requirement
– 68% = give authority to Drs
– 46% = to protect hospital
– 41% = made their wishes be known
– 10% = did not know what they agreed to sign

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KS Hoe, BM Karis MedJ Malaysia, 57 June 2002
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KS Hoe, BM Karis MedJ Malaysia, 57 June 2002

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KS Hoe, BM Karis MedJ Malaysia, 57 June 2002

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Patients Expectation (Beresford 2001)

Royal Brompton & Univ College Hosp. London
– Pts undergoing cardiac surgery (CABG)
– 42% = don’t want information of risks
– 50% = don’t want to know risk of death
– 54% = don’t want to know risk of stroke
– Statistical figures just confuse

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Asian Patients Expectation
• I leave it to GOD
• I have faith in you
• “Dr do what you think is best”
• If you are the patient what would you decide
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Consent For Transfusion
• Culture of just, openness & transparency
• Allows patient to make consent decision
• Allows doctors to document reason for
transfusion
• Management of unexpected outcome –
seroconversion
• Medico-legal aspect : Duty to inform
• In accordance with current international best
practice.
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Seroconversion Cases:2011/12 IJN
2011

2012

Total number

7

7

Donors seroconverted
with Hepatitis C

2

2

Donors seroconverted
with HIV

2

4

Donors seroconverted
with Syphilis

3

1

No of cases closed

5

3

2011 : No of cases closed = 5 ( 1 deceased, 3 tested non reactive, 1
discarded )
2012 : No of cases closed = 3 ( 1 HCV tested negative, 1 HIV not
transfused, 1 syphilis)
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Pusat Darah Negara (PDN)
(National Bld. Trans. Services)

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MMC Consent Guide 2011 & 2013

Consent Validity

MMC Consent Guideline 2013

MMC Consent Guideline 2013

Abdul Razak Datuk Abu Samah
v
Raja Badrul Hisham Raja Zezeman Shah and others






Facts of the case:
Colorectal surgeon and insertion of Ryles tube
Assigned consent to Trainee Officer
Patient refused
Decision to do it under anaesthesia
Patient had aspiration and subsequently died

NO ABBREVIATIONS
TO BE USED

Example Aneasthesia Consent

Severe Left Main Stem with
Possible Difficult Intubation:
Limited Mouth Opening
Poor dentition

Dr: : Your operation will
be done with local
anaesthetic

IS OUR EXPLANAITION CLEAR?

• “There is yet no legal duty to
ensure patients understand
information that is communicated
to them.”

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Most Frequently Lost Documentation:
Anaesthetic Records & Charts

Determined Claims 2008-2012
World Anaesthesia

1 August 2011

DOCUMENTATION
IS ONE OF THE
MOST
PROBLEMATIC
AREAS IN
MEDICAL
LITIGATION

Informed Consent
• Western Idea of Autonomy
• Influenced by
– Social, Cultural, Family, education standard
– Disease type, severity, specialty
– Clinical, research, nursing




Law Use Professional Guidelines
? Reformulate IC for Asian Culture
Asian Judges use Western philosophy/case law
Asian Patients use Asian values
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Lancet 1994

However the landscape is changing with awareness of medical indemnity
and public awareness