American Society of Regional Anesthesia and Pain Medicine August 2017 - 28

assessment, such as the Mini Mental State Examination (MMSE) or
the MacArthur Competence Assessment Tool (Mac-CAT). However,
none of these tools have been validated in patients who have
undergone anesthesia. For complex patients with mental illness or
dementia, it may be appropriate to consider a formal psychiatric
evaluation.2 While there are no formal guidelines on how to conduct
a capacity assessment, it has been recommended the following
four components be evaluated:3
1. Understanding: The patient needs to have an understanding of
his or her own condition.
2. Appreciation: The patient must be able to appreciate the nature
and significance of the decision he or she is about to make.
3. Reason: The patient must be able to reason, weighing the risks
and benefits of a procedure.
4. Express: The patient must be able to communicate a choice.
These requirements of decision-making capacity can easily be
remembered by the acronym "U ARE." If a physician is unsure
whether the patient has
decision-making capacity,
the next option would be a
surrogate decision maker.
It is often reasonable to
seek and subsequently
document the agreement of
a surrogate decision maker with the expectation that the surrogate
will attempt to determine what the patient would have wanted or
would want in the current situation. When determining who should
act as surrogate decision maker, it is important to know your state
statutes and hospital policy, as this varies from state to state.4

free of any duress or time constraints. In addition, it is vital to
continually reach across the drapes to our surgical colleagues,
provide educational materials and updates on various anesthetic
techniques or pain management options, and offer consultation
on high risk patients (ie, opioid dependence) to get ahead of the
potentially challenging cases.
Recently, the American Society of Anesthesiologists (ASA) approved
patient decision aids for epidural and spinal anesthesia as well
as peripheral nerve blocks.6 These aids are available for all ASA
members to incorporate into their practice. They are written at
an appropriate literacy level and provide unbiased information
on risks and benefits of the procedures. Within the regional
community, it has been shown that risk disclosure for regional
anesthesia varies amongst practitioners.7 Therefore, it may benefit
both physicians and patients to develop a consensus for consent
practices with guidelines regarding risk disclosure for specific
blocks or procedures. Another consideration is the actual consent
form. Depending on your institution, if a generic surgical consent
does not discuss the
risks adequately, it may
be prudent to develop
a separate consent for
both general and regional
anesthesia.

"Anesthesiologists are uniquely subject
to many vulnerabilities and challenges
specifically related to informed consent."

With respect to informed consent, historically, there are two standards
by which the law has defined our responsibility: the professional
practice standard and the reasonable patient standard. In states that
uphold the reasonable patient standard, physicians have incurred
greater exposure to liability. Additionally, cases with similar facts may
be decided differently based on the state in which they are tried, and
a discrepancy between customary medical practice or professional
standard and the patients' expectations about risk disclosure may
exist.5 Unfortunately, the varying legal climates across the United
States and worldwide have serious implications on the way in which
one conducts his or her clinical practice. It is therefore important to be
aware of the standard upheld by your state.
The question now becomes: how do we bridge the ideal world to
the real world when it comes to informed consent? As a profession,
it is imperative to think about the entire perioperative period;
hence, the birth of the perioperative surgical home. This approach
encourages a discussion with patients about various types of
anesthesia, including postoperative pain control, which would be

28

In summary, informed consent is a crucial part of patient care from
both ethical and legal standpoints. It is therefore important to know
state statutes and policies of your home institution. It is crucial to
document your assessment of patient capacity and your consent
process. Ultimately, spending adequate time with your patients,
treating them sensitively and compassionately, and allowing them
to take part in the decision-making process will lead to improved
satisfaction for both parties as well as improved outcomes.
REFERENCES
1.

Beauchamp TL, Childress JF. Principles of Biomedical Ethics. New York: Oxford
University Press;2009.

2.

Appelbaum PS. Assessment of patients' competence to consent to treatment. N
Engl J Med. 2007;357(18):1834-1840.

3.

Appelbaum PS, Grisso T. Assessing patient's capacities to consent to treatment.
N Engl J Med. 1998;25:1635-1638.

4.

DeMartino ES, Dudzinski DM, Doyle CK, et al. Who decides when a patient can't?
Statutes on alternate decision makers. N Engl J Med. 2017;376(15):1478-1482.

5.

Studdert, D, Mello M, Levy M, et al. Geographic variation in informed consent
law: two standards for disclosure of treatment risks. J Empir Leg Stud.
2007;4(1):103-124.

6.

Domino KB, Posner KL, Sween LK, Shapiro FE. Improving patient-centered care
delivery in 2017: introducing pre-anesthesia decision aids. ASA Newsletter.
2017;81(5):10-13.

7.

Brull R, McCartney CJ, Chan VW, et al. Disclosure of risks associated with
regional anesthesia: a survey of academic regional anesthesiologists. Reg
Anesth Pain Med. 2007;32(1):7-11.

American Society of Regional Anesthesia and Pain Medicine
2017



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