Overcoming the challenges of informed consent for anaesthesia

By: Dr Grant Brace FANZCA, an anaesthetist and member of Avant’s State Member Advisory Forum – Victoria

Oct 18, 2017

Patient consent for an anaesthetic can be a nebulous entity. There are no detailed manuals, but there are many articles written on this subject. The Australian and New Zealand College of Anaesthetist’s (ANZCA) Guidelines on consent for anaesthesia or sedation provides some guidance on the consent process.

Public understanding of the anaesthetist’s role is also poor, with many patients still holding the belief that the anaesthetist leaves the operating room after anaesthesia has been induced. Furthermore, in the current era of surgery on the day of admission, anaesthetists often have limited opportunity to have more than a brief, but necessary discussion pre-operatively.

Claims rarely arise from consent to anaesthesia issues, unlike surgery, and if they do, it is usually due to unanticipated dental damage. Unfortunately, an increasing number of complaints to regulatory bodies like AHPRA arise from a perception of poor anaesthetist performance or communication, real or perceived. In the 2015-16 financial year, Avant’s claims data showed that almost half (49%) of anaesthetists’ claims were for complaints referred to the regulatory authorities for conduct, performance and health impairment concerns.

The pre-operative consultation

It’s important to allow enough time for a pre-operative consultation and not to rush this with your patients. Those impressions of you obtained during your brief encounter with the patient, count. Achieving a good rapport with your patient pre-operatively is essential.

Even for ASA 1 patients having minor surgery, a consultation should take up to 10 minutes. Medically complex patients will take a lot longer. Many anaesthetists are now making pre-operative phone calls and obtain completed pre-operative medical questionnaires to avoid lengthy last minute consent discussions on the day of surgery. A pre-operative discussion may be lengthy, especially if there are alternative options for anaesthetic technique. These can include sedation, regional anaesthesia, central neuraxial blockade and others depending on the circumstances, each with their unique set of risks and benefits.

Virtually all patients are anxious, some almost to the point of psychological decompensation. For many, this is not the ideal time to discuss risk, especially if significant risk exists.

Discussing the risks

The legal principles as to what is a material risk that needs to be discussed with a patient was established in the case, Rogers vs Whittaker 1992. Risks can be divided into objective risks and subjective risks. Objective risks are those which any reasonable person in the patient’s position would believe material or relevant in making a decision about the anaesthesia, such as dental damage, adverse drug reactions, aspiration and awareness etc. Few patients are aware of the risk of dental damage and anaesthesia. This is an issue I spend a little time on, particularly if a patient has restorative dental work affecting the incisor teeth. It’s important to warn patients of the possible risk of dental damage and to document this discussion and their consent to undergo anaesthesia. From a legal standpoint, safeguards are then in place to refuse reimbursement to the patient, if dental damage occurs.

Subjective risks are those which the anaesthetist is aware or should reasonably be aware that the particular patient, if warned of the risk, is likely to attach significance to. Your discussion of these types of specific risks should be tailored around issues that are relevant to each patient. Discuss what the patient has raised with you and what you feel your patient wants to discuss – this takes practice. This could include problems with previous anaesthesia, potential issues with the current surgery including ICU admission, problems friends or relatives have experienced, or even related to information gathered from social media.

Informed financial consent

In my opinion, financial consent should not be sought from a patient immediately pre-operatively as it creates a negative impression in the patient's mind as to your motives for providing the anaesthesia care. Organise this requirement pre-operatively at another time. Patients having urgent surgery are often in no state to discuss financial matters. This information should be provided post-operatively.

Advanced care directives

Patients with serious illnesses such as advanced malignancy or other terminal illnesses may have an advanced care directive (ACD). It’s important to check beforehand if your patient has an ACD in place so that you can discuss the patient's wishes prior to surgery.

Central neuraxial blockade

If central neuraxial blockade is to be part of your technique, ideally this should be discussed well in advance to allow your patient time to consider the risks.

Consent for teaching

Regardless of the public or private setting, a doctor's duty of care should not compete with any perceived obligation to train or educate junior doctors or other staff. Consent should be obtained for all key aspects of the anaesthesia if anybody other than the anaesthetist is to perform these tasks, for example, endotracheal intubation. It is inappropriate to obtain this consent immediately prior to surgery. Patients may be sedated, under duress or feel that if consent is not given their care may be compromised.

Unfortunately many anaesthetists still rush through the consent process. For many, we can and must do better. A consent discussion is essential and requires a thoughtful approach to successfully accomplish informed patient consent.

Further information

Gaining patient consent and material risk (video)

Anaesthetist checklist  

Expert advice whenever you need it

For more information visit Avant’s website or, for immediate advice, call Avant’s Medico-legal Advisory Service (MLAS) on 1800 128 268, 24/7 in emergencies.