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

87

61

59

28

12

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

17

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

19

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

20

KS Hoe, BM Karis MedJ Malaysia, 57 June 2002

21

22

KS Hoe, BM Karis MedJ Malaysia, 57 June 2002

23

KS Hoe, BM Karis MedJ Malaysia, 57 June 2002

24

Patients Expectation (Beresford 2001)

Royal Brompton & Univ College Hosp. London

Pts undergoing cardiac surgery (CABG)
42% = dont want information of risks
50% = dont want to know risk of death
54% = dont want to know risk of stroke
Statistical figures just confuse

25

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
26

27

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.
28

Seroconversion Cases:2011/12 IJN

2011

2012

Total number

Donors seroconverted
with Hepatitis C

Donors seroconverted
with HIV

Donors seroconverted
with Syphilis

No of cases closed

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)
29

Pusat Darah Negara (PDN)

(National Bld. Trans. Services)

30

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.

44

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
49

Lancet 1994

However the landscape is changing with awareness of medical indemnity

and public awareness