The importance of recording an informed refusal

Dr Gopinath Shenoy

A lot is written about recording ’consent’ of a patient prior to the initiation of treatment. If a written or express consent is not available no much damage is done as Courts do consider that an implied consent must have been present between the parties and this many a times has saved doctors. Very little is written about a fact, which I call an "Informed Refusal". So what is this Informed Refusal and can it be disastrous to a doctor’s case?

After explaining all consequences, when a patient refuses to consent, an Informed Refusal is said to be present. Informed Refusal is therefore refusal to give consent after understanding all consequences thereof. This refusal has always got to be in a written form and it can never be in an implied form as Courts lay the burden of proving this Informed Refusal solely on the shoulders of the person who claims its existence. Subsequently proving an Informed Refusal may well be impossible.

How disastrous an absence of an express Informed Refusal can be, can well be seen from what happened in ’Dr T T Thomas v/s Smt Elisa and others’ in Kerala. The complainant/plaintiff’s husband was admitted in General Hospital Ernakulam as an in-patient for a complaint of severe abdominal pain. The case was diagnosed as a case of acute appendicitis. On the second day, his condition deteriorated and surgery was not possible.

On the third day, he died due to a ’Perforated Appendix.’ The mother, widow and the children of the deceased filed the suit for damages against the doctor. The case of the defendant doctor was that he had examined the patient and diagnosed the disease as perforated appendix with peritonitis. He also advised immediate operation. However, the surgery could not be performed because the patient was reluctant to undergo the same. Therefore, the patient was given other treatment. However, on the second day, the patient’s condition had deteriorated to such an extent that it was impossible to carry out the surgery.

The lower Court gave a finding that the operation could have been conducted on the day of admission or on the next day and also held that death of the patient was due to negligence of the doctor. Kerala High Court. also gave hearing to advocates of both sides and their Lordships came to the conclusion that the consent factor is important in cases of selective operations which may not be eminently necessary to save the patient’s life. But the same plea cannot be taken where an emergency operation is needed or where the patient is not in a fit state of mind to give conscience answers regarding consent.

They also agreed with the opinion that, as a general rule medical treatment of a minor nature should not be proceeded with unless the doctor has first obtained the patient’s consent. This consent may be express or implied, but in certain circumstances, the doctor may be entitled to proceed without this consent, firstly when the patient’s balance of mind is disturbed and secondly when the patient is incapable of giving consent due to unconsciousness and finally when a patient is minor. When a surgeon advances the plea that the patient did not give consent for surgery, the burden is in fact on him to prove that failure of treatment was on account of refusal of the patient to give consent. The case sheet of the patient, in the instant case, did not show that the patient had refused to undergo the operation. There was nothing on record that consent for the surgery was refused by the patient.

Therefore recording of an express consent is important but recording of a Negated Consent is in my opinion more important. When advice given to patient is refused it will be most prudent to record this refusal on paper as only this can come to the doctor’s rescue later on.

(The author is the former judge of Consumer court, Mumbai and may be contacted at drgnshenoy@yahoo.com)