Providing appropriate information and clear communication vital to obtaining informed consent from consumers


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 wrote to the parents recommending the boy undergoes 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 give 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.

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