It was a white wand — the kind a little girl might have. White ribbon wound round a long straw, at the top of which a double pair of white wings was set. Another more delicate white ribbon looped around the wings, to the front of which was fixed a downy feather, and behind which the ribbon was tied in a bow.
Crusoe was facing her most difficult patient. A man with manic-depressive illness who, when depressed, posed a serious risk of suicide. She had tried all possible medications but none had helped. They seemed, if anything, to make things worse and to prolong the condition. The only thing that had helped in the past was electroconvulsive therapy (ECT) but he was resistant to this. Contemplating what to do, she idly picked up the wand and waved it.
She realized her mistake before he did. She should of course have sought his consent before exposing her patient to any risk. She apologized. He was perplexed; if he wished to get better or she wished to get him better — where was the problem?
“Look what happened to Macbeth”
“Well,” she said, “It might seem straightforward, but look what happened to Macbeth.”
“But what would I consent to?” he replied. “Do I consent to believing in magic or to your believing in magic or simply to having you wave the wand around?”
“Well in this case,” she said, “simply having me wave the wand around. Look I don’t know whether having the bow or the pom-pom facing you makes a difference, or even whether holding it the right way up or upside down makes a difference. I didn’t chant spells, invoke powers, or connect this manipulation to any belief system, but a wand is a wand. It’s not like reading a horoscope, where your eye might accidentally catch sight of some words but there is no one on the far end of them, and most of us can take or leave these things. I’m on the far end of this.”
“Well,” he said, “whose karma is it that might come back to haunt me — mine or yours? Was Macbeth the victim of the witches or did he undo himself? Makes a difference to any consent form. Actually, you say you didn’t tap into any belief system when waving the wand, but hasn’t mentioning informed consent created the need for informed consent, so that in a sense even before asking me to consent you’d have had to get my consent to having the idea of informed consent raised — but how could you do this?
“If I were elsewhere and you had been idly waving the wand and thinking about me, would you have needed informed consent then or is it just the fact that now that I’ve seen you do it that you need me to indemnify you, as it were?
“if you’re going to muck around with reality like this, surely you need to get the consent of everyone?”
“And if you’re going to muck around with reality like this, maybe change the structure of the universe, surely you need to get the consent of everyone?”
Crusoe thought about this.
“We’re not talking about turning you into a white rabbit,” she said, “so I can’t see a need to get your wife and family to agree to this. But these days if my employers knew what was going on here, they almost certainly wouldn’t consent — so in this sense getting you to sign a consent form might make my position worse.
“But while you’re most unlikely to end up as a white rabbit, life goes on after this wand is waved, things continue to happen, and waving it just may affect your perception of the sequence of things afterwards. If they go well, fine. But if they go badly, will you begin to wonder about what effect the wand may have had.”
“Why haven’t you gotten my consent for all the pills you’ve put me on over the years?”
“Now that you’ve mentioned it, I get most of the side effects that are listed in the package inserts. Why haven’t you gotten my consent for all the pills you’ve put me on over the years?” he asked.
“Is there any difference between the way the witches ‘paltered with’ Macbeth ‘in a double sense’ and the way drug companies do with me, or rather with you? At least the witches showed him all the data which is more you can say for the drug companies.”
“I have — I told you about likely problems. You may not have signed a form but by taking them you showed that you agreed.”
“Ah, no you didn’t. You didn’t get me to face the prospect of something going seriously wrong. We both just assumed things would go right, or that we’d be able to manage whatever went wrong. We’re nervous now because we’re not sure we could manage what would happen if the wand went wrong, but it is much more likely that things will go wrong with the pills. All the things that may have been going to happen anyway — things that you’re now worried I might attribute to the wand — would still have happened after the pills, and I’m even more likely to think that they were caused by the pills than by the wand.
“Waving these pills around you really do change the fabric of the universe…”
“And I don’t just mean things going wrong for me, but waving these pills around you really do produce changes in the fabric of the universe that we can see happening as a consequence of growing pharmaceutical company profits and power — all the women who are going to be persuaded their lives will make sense once their sexual dysfunction is sorted out. Did you get my consent for that?
“And what do I tell my wife about this wand? After all, things only started happening to Macbeth once he told his wife. Will the fact that you’re a woman make a difference to how she views things?”
Dr Healy
You raise the important issue of informed consent. The Canadian Medical Protective Association (CMPA) basically the malpractice insurer, has issued a handbook devoted completely to this issue and it includes informed refusal. In Canada, every competent adult has the right to refuse treatment even if it means death or disability and must not be coerced into accepting it. All potential risks and outcomes must be explained in full.
Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 is the definitive case in Canada on informed refusal. An appeal was made to the Supreme Court, in effect to force the respondent to take psychotropic medications. The brief review of the circumstances reads as follows:
“Since 1985 the respondent has frequently been admitted to mental
institutions in the United States and Canada and has most often been diagnosed as having
a bipolar disorder. His recent admission to hospital arose after he was found not
criminally responsible for making death threats and the Ontario Review Board ordered
his detention for 12 months. The respondent’s physicians proposed treatment for his
bipolar disorder that included neuroleptic medication, mood stabilizers, anti-anxiety
medication and anti-parkinsonian medication. The respondent refused to consent to this
medication and the attending physician found him not capable of deciding whether to
reject or accept the proposed medical treatment. The Ontario Health Care Consent Act,
1996 permits a person to be treated without consent on grounds of lack of capacity,
defined as a lack of the ability “to understand the information that is relevant to making
a decision about the treatment . . . and . . . to appreciate the reasonably foreseeable
consequences of a decision or lack of decision”. The respondent applied to the Ontario
Consent and Capacity Board for a review of the physician’s decision and the Board’s
confirmation of incapacity was subsequently overturned on judicial review at the
Superior Court of Justice. The Court of Appeal upheld the findings of the reviewing
judge.”
The Supreme Court, in this case, found for the patient stating that he was capable of making decisions about his own care.
“Per Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps JJ.: The
Health Care Consent Act, 1996, presumes a person is capable to decide to accept or
reject medical treatment; therefore, patients with mental disorders are presumptively
entitled to make their own treatment decisions. The presumption of capacity can be
displaced only by evidence that a patient lacks the requisite elements of capacity
provided by the Act. Capacity involves two criteria: first, a person must be able to
understand the information that is relevant to making a treatment decision and second,
a person must be able to appreciate the reasonably foreseeable consequences of the
decision or lack of one. The legislative mandate of the Consent and Capacity Board is
to adjudicate solely upon a patient’s capacity and the Board’s conception of the patient’s
best interests is irrelevant to that determination.”
On consent, the CMPA states “A physician may be liable in assault and battery when no consent was given at all, when the treatment went beyond or deviated significantly from that for which the consent was given, or if consent to treatment was obtained through serious or fraudulent misrepresentation in what was explained to the patient.” Material risk is defined thus: “A risk is thus material when a reasonable person in what the
physician knows or should know to be the patient’s position would be likely to attach
significance to the risk or cluster of risks in determining whether or not to undergo the proposed therapy.”
Now, if we apply all of the above to psychotropic medications that the physician either does know has material risks (such as suicide) or dismisses them as “rare” or “insignificant”, we would have lawyers salivating.
“Our courts have repeatedly affirmed that good intentions of the physician cannot be substituted for the will of the patient.”