Potential Problems in Informed Consent Language

By Doyice Cotten
8637052755_e096dbe60c_mWhile on a recent trip to Namibia (Africa), I had occasion to visit a Physiotherapy clinic, which seems to be quite similar to physical therapy clinics in the States. They require clients to sign an informed consent agreement prior to treatment. An informed consent is NOT the same as a waiver of liability for negligence; it is an agreement by which one releases the provider from liability for injuries resulting from the “informed treatment risks” – not negligence. Regardless, a provider needs to be careful with the wording in order to gain this protection.

In this case, prior to receiving treatment, the client or patient is required to sign the agreement releasing the clinic from liability for the “informed treatment risks.” The agreement consisted of seven statements. They were:

1. During the evaluation and treatment I may need to uncover specific body parts and I understand that I may refuse to do so if and when I feel uncomfortable doing so.
2. The physiotherapist will need to touch me in order to provide effective treatment and that I will inform the physiotherapist if and when I feel uncomfortable in doing so.
3. It is my right to withdraw this consent at any time or for any specific procedure or modality.
4. I have been informed of the benefits and risks (if any) of the procedures or modalities. I have been informed of alternative procedures or modalities.
5. I understand the procedures and possible potential complications and I had the opportunity to discuss this with the physiotherapist.
6. I hereby consent to physiotherapy procedures and modalities that will be performed on me/my dependent; subjected to the physiotherapist performing the relevant safety tests and evaluations, and taking relevant precautions.
7. I give this consent freely and declare that it was not made under duress.

This was followed by a place for the signature of the client.

Potential Problems
First, understand that this document is presented and signed prior to meeting the physiotherapist. Note in Number 4: “I have been informed of the alternative procedures or modalities.” And in Number 5: “I understand the procedures and potential complications and I had the opportunity to discuss this with the physiotherapist.” At this point the client has no idea as to the treatments and modalities and has not talked with the physiotherapist – only the receptionist.

Second, an informed consent, by definition, “informs” the client as to potential risks and potential complications. The only risks of which the client is informed here is exposure of body parts and touching by the physiotherapists. No specific risks or complications are given for any of the treatments or modalities involved. There is no “informing” of the treatment risks here.

The informed consent should be administered by the physiotherapist on the first visit, explaining what the physician has prescribed, what the treatment is, any risks or possible complications, and any alternate treatments or modalities. Then the client could ask questions and make a true “informed” consent.

This would involve a little more time with the physiotherapist on the first visit, but would be helpful to the client and would make the informed consent agreement more likely to be enforced in the event of a lawsuit.

Photo Credit: Thanks to Durah Ramll on Flickr.