Some Legal Issues in

Clinical Practice (Consent)

Aitkenhead AR, The Pattern of Litigation Against Anaesthetists.
BJA 1994, 1993; 73:10-21
0
2000
7
3000
1500
1000
500
2500
2475
1068
760
371
121
87 61 59
28 12 9 7
6
7

Files Opened 2003-2012
World Anaesthesia (MPS Data)
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
Williams OA, Patient knowledge of operative care.
Journal of the RSM. 1993. 86(6): 328-31.
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



17
Paternalistic approach Dr-centric
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
21
KS Hoe, BM Karis MedJ Malaysia, 57 June 2002
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 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
29
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)

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
IS OUR EXPLANAITION CLEAR?
Dr: : Your operation will
be done with local
anaesthetic

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