We’re a long way from the days when physicians told patients what they needed and patients agreed without question.

Although some patients still have an “I’ll do whatever you say, Doctor” attitude, they’re in the minority. In today’s world, different people react to proposed treatments or tests differently, often as a result of their varied backgrounds, financial status, values, attitudes and perspectives.

Most patients want information about medications, procedures and alternatives before they take a test or embark on a specific course of treatment. Also, every patient who is mentally competent has the right to refuse any test or treatment option.

In this environment, physicians should never provide treatment without first obtaining informed consent from patients (or from individuals legally empowered to give it on their behalf). Indeed, our legal system defines treatment without informed consent as battery.

Informed refusal, the other side of informed consent, is equally important. For it to occur, physicians must make sure patients understand the seriousness of their conditions; the full range of possible risks to patients—up to and including death, if applicable—should be discussed. But physicians must also go a step further by disclosing what is likely to happen if patients decline treatment or tests, or do not take other recommended follow-up steps.

Patients benefit from such discussions by becoming more knowledgeable about the pros and cons of recommended treatments and tests. Physicians benefit because informed patients have more realistic expectations and therefore are less likely to sue for malpractice.

The Physician’s Legal Obligation
The requirement to point out potential health risks to those refusing a recommended treatment or test was made clear in a California court case several years ago. The lawsuit was brought by the family of a woman who repeatedly refused her doctor’s advice to have pap smears.

Eventually, she died of cervical cancer. Her family sued the physician, saying she didn’t understand that cervical cancer could go undiagnosed in the absence of pap tests. Fortunately, the patient’s noncompliance was well-documented by the physician, and the case was dismissed.

In another case, Truman v. Thomas, 27 Cal.3d 285 (1980), the California Supreme Court held that physicians are responsible for making sure patients are aware of all significant risks that could result from noncompliance. In Truman, the court reviewed the patient’s right to refuse treatment, and the physician’s corresponding duty of care, as follows:

“If a patient indicates that he or she is going to decline a risk-free test or treatment, then the doctor has the additional duty of advising [the patient] of all material risks of which a reasonable person would want to be informed before deciding not to undergo the procedure. On the other hand, if the recommended test or treatment is itself risky, then the physician should always explain the potential consequences of declining to follow the recommended course of action.”

Physicians’ obligation in this regard applies equally to all tests and procedures, from simple, common ones to the most complex and unusual. It also applies to a recommendation that patients see a specialist; physicians must inform patients of the possible consequences of not getting a consultation.

Documentation in a patient’s medical record should include the following:

• a notation about the information that the physician gave the patient concerning the condition and the proposed treatment or test. Reasons for the treatment or test should be noted.
• a notation that the patient was advised of the possible risks and consequences—including loss of life or limb, if applicable—of failing to undergo treatment or a test.
• notation about the physician’s referral of the patient to a specialist, including the reasons for the referral and possible risks of not seeing the specialist. Also note any attempts to contact the patient after the referral to a specialist.
• a notation about the patient’s refusal of the physician’s treatment/testing plan or advice. This should include the patient’s signature on a Refusal to Permit Medical Treatment form. (Go to www.scpie.com/forms for a sample form.) Although such forms are optional, they offer physicians the strongest protection against claims of a lack of informed consent. Make sure an independent witness is present when the patient signs the form.

Maintain an Ongoing Dialogue
How would you respond to the following? A 55-year-old man has a three-month history of chest pain and fainting spells. As his physician, you feel his symptoms merit cardiac catheterization. You explain the potential benefits and risks to him, and include your assessment of what his prognosis would likely be without the intervention.

The patient is able to demonstrate that he understands all of this but refuses the intervention nonetheless. Since he is competent to make the decision, you have a duty to respect his choice.

However, you should also explore the patient’s reasons for refusing treatment and continue discussing your recommendations with him. You should maintain an ongoing dialogue concerning:

• what the testing/treatment entails
• why it is the recommended course of action
• the risks and benefits of the proposed testing/treatment
• the risks of delaying or not having the testing/treatment
• possible alternatives.

Just because patients refuse a particular treatment or test does not necessarily mean they are incompetent or don’t know what they’re doing. Refusal to comply can be an important cautionary flag, one that alerts physicians of the need to take a close look at their recommendation and at the reasoning behind the patient’s refusal to follow it.