Informed consent

Informed consent is a legal doctrine that has been developed by the courts over a number of years. The doctrine of informed consent may have been derived from the Nuremberg Code, which required that doctors obtain the voluntary informed consent of the subject prior to conducting medical experimentation. The Informed Consent Doctrine requires that medical doctors provide a patient with all relevant information about a proposed procedure or treatment prior to obtaining the consent of the patient to carry out the procedure or treatment. Four items of information that must be provided are:

  • the nature of the procedure
  • the risks
  • the benefits
  • the availability of alternative treatment (including no treatment) and the risks and benefits thereof.

Informed consent protects the patient by providing him/her with complete information on which to make an informed decision. Informed consent usually also protects the doctor from financial liability (with exceptions) provided that the procedure is properly executed according to the prevailing standard of care and without negligence. The adult patient's power to consent is very broad and includes the power to consent to such extreme operations as sexual reassignment. Inadequate provision of information, however, may invalidate the consent.

Informed consent in pediatrics

When the patient is incompetent as in the case of a child or an incompetent adult, a parent or other guardian usually gives surrogate consent. Parents are expected to exercise their power to consent only in the best interests of the child. Courts have narrowed the powers of consent by proxies. Proxies usually may only consent to procedures which are beneficial to the patient. An infant can neither be informed nor give consent for surgery, such as circumcision. This raises a serious ethical and legal question for physicians and parents.

The American Academy of Pediatrics issued an official policy statement regarding informed consent in pediatric practice in 1995 [Pediatrics 1995;95:314-317]. A number of statements in this report are relevant to circumcision, such as the following:

"We now realize that the doctrine of 'informed consent' has only limited direct application in pediatrics. Only patients who have appropriate decisional capacity and legal empowerment can give their informed consent to medical care. In all other situations, parents or other surrogates provide informed permission for diagnosis and treatment of children with the assent of the child whenever appropriate."

"Parents and physicians should not exclude children and adolescents from decision-making without persuasive reasons."

"Thus 'proxy consent' poses serious problems for pediatric health care providers. Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses."

"A patient's reluctance or refusal to assent should also carry considerable weight when the proposed intervention is not essential to his or her welfare and/or can be deferred without substantial risk."

Permission of elective non-therapeutic neonatal circumcision

Infant circumcision has been designated as an elective procedure by the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists. This means it is not required for good health and it is not a recognized part of any hospital routine. The American Medical Association has defined neonatal circumcision as a nontherapeutic procedure. Some legal commentators believe that parents do not have the power to grant proxy consent to elective neonatal non-therapeutic circumcision. This concept, however, has not yet been tested in court.

The complete report is reproduced here.

Consent form

At the present time, the legal problems notwithstanding, the medical practice is to obtain the written consent of a parent to the circumcision of a male child before a circumcision is carried out. (In the United Kingdom, a court decision requires that doctors obtain the written consent of both parents for non-therapeutic circumcision of a child.)

A circumcision that is performed without valid consent is a wrongful circumcision. Wrongful circumcisions not infrequently result in litigation to recover damages on behalf of the child for the pain, suffering, and permanent injury to the penis, so most doctors and institutions will not perform a circumcision without a signed consent form.

Many hospitals/doctors do not provide parents with complete information on which to make a truly informed decision. (There is an inherent conflict of interest between the hospital's/doctor's desire to perform a circumcision and collect a fee and the right of the patient and/or his representative to be fully informed.) Therefore, few American parents are fully informed of the nature of neonatal circumcision and of the known risks and disadvantages associated with infant circumcision. To inform parents, NOCIRC presents a model informed consent for circumcision form, which may be used universally. A model consent form that presents the information parents should know prior to granting consent for circumcision, written by pediatrician Dr. Robert Van Howe, is available here.

The complete consent form is reproduced here.

See also Consent for a Medically Necessary Circumcision (Offsite link)

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Last update August 1, 2016