The issue of informed consent was highlighted in a
decision by Health and Disability Commissioner Morag
McDowell, who found an otolaryngologist and ear, nose and
throat clinic in breach of the Code of Health and Disability
Services Consumers’ Rights (the Code).
In her
decision, Ms McDowell highlighted the importance of
providing consumers with appropriate information through
effective, clear communication in order to obtain informed
consent, and for providers to record and file documentation,
and ensure communication of key clinical decisions between
administrative and clinical staff.
In this case, the
parents of an 8 year old boy agreed and consented to
surgical treatment for their son’s breathing and
allergies, including removal of the boy’s
adenoids.
The otolaryngologist subsequently wrote to
the parents recommending the boy undergo a CIT procedure- at
the same time as the other planned procedures. The parents
wrote to the clinic via email refusing the CIT procedure.
This was acknowledged by the clinic but not placed in the
boy’s electronic file or passed onto the
otolaryngologist.
Prior to commencement of the
surgery, there was miscommunication between the mother and
the otolaryngologist about consent for the procedures to be
performed. This resulted in the CIT procedure being written
on the consent form and signed, contrary to the parents’
understanding that they had not consented to it.
The
CIT procedure was performed, but for clinical reasons the
boy’s adenoids were not removed as planned. Around six
hours following the surgery, the parents became aware that
the boy’s adenoids had not been removed and the CIT
procedure had been performed.
The principle of
informed consent is at the heart of the Code. Services may
be provided to a consumer only if they make an informed
choice and gives informed consent.
“The informed
consent process began when the family first presented to the
clinic and otolaryngologist for the boy’s ongoing
breathing issues. It was acknowledged by the clinic that
deficiencies in the administrative process directly resulted
in the parents’ later refusal of the CIT procedure not
being communicated to the
otolaryngologist.
“Unfortunately, a chain of errors
then caused the CIT procedure to be performed without
informed consent having been given by the boy’s
parents.
“The clinic was responsible for ensuring that
its system, including its support staff, appropriately
actioned the refusal of consent to the CIT procedure by the
parents for their son,” says Ms McDowell.
Ms McDowell
considered this information was significant, as it would
have altered the treatment plan proposed for the boy. The
clinic should have ensured this critical information was
communicated to the otolaryngologist.
Although Ms
McDowell accepted that the otolaryngologist’s lack of
knowledge of the family’s refusal of consent to the CIT
procedure was affected by the clinic’s error, Ms McDowell
considered that the duty remained with the operating surgeon
to ensure he had obtained consent for the CIT procedure he
performed.
Ms McDowell recommended the clinic provide
a written apology to the family, and review the
effectiveness of its new policy, which requires further
consultation with the consumer when there is a delay greater
than three months between the initial consultation and the
day of surgery.
She also recommended the
otolaryngologist provide a written apology to the family,
setting out the changes he has made in respect of their
complaint.
[1]
CIT procedure involves making an incision or cauterising
the swellings on the side walls of the nose (the
turbinates)
Notes
This case relates to a
complaint made to HDC in 2020. We aim to investigate
complaints as promptly as possible, while ensuring natural
justice and the interests of all the parties involved to
provide information, and respond to evidence put forward by
others is considered.
The full
report of this case can be viewed on HDC’s website –
see HDC’s ‘ Latest
Decisions‘.
Names have been removed from the
report to protect privacy of the individual involved in this
case. We anticipate that the Commissioner will name Te Whatu
Ora (previously DHBs), and public hospitals found in breach
of the Code unless it would not be in the public interest or
would unfairly compromise the privacy interests of an
individual provider or a consumer. HDC’s naming policy can
be found on our website here.
HDC
promotes and protects the rights of people using health and
disability services as set out in the Code
of Health and Disability Services Consumers’ Rights (the
Code).
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