Informed consent is a relatively new concept. Hippocrates proscribed informing the patient:“conceal(ing) most things from the patient while you are attending to him … revealing nothing of the patient's future or present condition.”[1] Medieval physicians considered themselves extensions of God and did not deign to confer with patients about their care. [2] The American Medical Association's first code of medical ethics in 1847 did not mention patient-physician interaction or informed consent. [3] In the early 1900s, physicians routinely obtained assent, the agreement of the patient to have a procedure, but not consent, the informed authorization by the patient to have a specific procedure. As long as the physician acted in accordance with accepted standards of care, informed consent was not legally required. This standard held until the 1950s, when a new rights orientation-civil rights and consumer rights-brought about a new interpretation of individual liberties and autonomy. [2]

The 1957 Salgo case launched the current concept of informed consent. After translumbar aortography, Mr. Salgo suffered permanent paralysis, a known risk of the procedure about which he had not been informed. The judge deciding this case clarified the difference between informed consent and assent by stating, “A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form [the] basis of an intelligent consent by [a] patient to a proposed treatment ….”* In other words, having the patient agree to a procedure without having knowledge of the relevant risks and benefits is inappropriate. [4]

The 1960 Natanson case established the professional practice standard. After radiotherapy, Ms. Natanson suffered severe radiation burns, a risk that had not been disclosed to her. The court asserted that the disclosure to the patient should be to the extent “a reasonable practitioner would make under the same or similar circumstances.”**[5] The professional practice standard, also known as the physician-based standard and the “reasonable doctor standard,” requires the level of disclosure to be dictated by the practices of the local physician community.

The next major shift occurred in the 1972 Canterbury case. Mr. Canterbury underwent a cervical laminectomy and subsequently became quadriplegic. The surgeons had followed the customary local practice of not informing the patient about this unlikely risk. The court held that such disclosure was insufficient without extenuating circumstances and suggested basing the extent of the disclosure on what is material to the patient's decision and not customary local practice.***[5] This established the “reasonable person standard,” which requires disclosure of all material information to the extent that would satisfy the hypothetical reasonable person. [6] Information is material if a reasonable person would consider it important for decision making. This standard is also called the “reasonable patient standard” or the general standard. Most jurisdictions today use either the professional practice or reasonable person standards. [7]

An outgrowth of the reasonable person standard is the “subjective person standard,” in which disclosure is tailored to the particular patient's wants and needs. Although difficult to use as a legal standard, the subjective person standard does establish the ideal level of disclosure. [6] The discussion of the risk of death in the anesthesia preoperative interview illustrates the use of these standards. The professional practice standard bases the disclosure on the prevalent practice in the local physician community. Practitioners following the reasonable person standard advocate informing every patient about the risk of death because most decision makers want to know. [7] Because not all patients want to know the risk of death, however, an anesthesiologist using the subjective person standard would, during the course of the preoperative discussion, determine whether the patient prefers only to know the more likely but less significant risks. [8]

As with many guidelines, one can fulfill the “letter of the law” without fulfilling the ethical spirit of obtaining informed consent. Institutional policies specify mechanisms and procedures for obtaining informed consent, yet a signed legal document does not necessarily achieve the goal of informed consent. [9] Patients or surrogates, for instance, may sign documents they do not understand. [8,10] Anesthesiologists, then, should consider the need to achieve informed consent in two symbiotic senses: the legal sense and the ethical sense.

The best way to fulfill both senses is to be vigilant in pursuing the spirit of informed consent. Establishing the patient-physician relationship, tailoring the disclosure of risks, and making the patient a full partner in decision making will improve the quality of the informed consent process and, as a result, decrease the likelihood of litigation. [11] Components of informed consent include an ability to participate in care decisions, to understand pertinent issues, and to be free from control by others in making decisions. The informed consent process culminates in an active autonomous request by the patient to receive a chosen perianesthetic course within the advice and guidance of the anesthesiologist. Some suggest it is unrealistic to expect to achieve these components, and thus true informed consent can never be obtained. If that is so, they argue, then why try to obtain informed consent at all? Beauchamp [12] responds to this argument best:

"It has sometimes been claimed that informed consent, so understood, has a mythical quality because true informed consent is never obtained under such a high ideal-that is, most patients and subjects cannot comprehend enough information or appreciate its relevance sufficiently to make decisions about medical care …. This objection, however, springs from a serious misunderstanding of the nature and goals of informed consent, in part because of unwarranted standards of full disclosure and full understanding. The ideal of complete disclosure of all possibly relevant knowledge needs to be replaced by a more acceptable account of how patients and subjects understand relevant information. Merely because one's actions fail to be fully informed, voluntary or autonomous is no indication that they are never adequately informed or autonomous."

Decision-making Capacity 

The ability to participate in care decisions is called decision-making capacity. [6] This is distinct from the legal concept of competency, which only a judge has the authority to determine. [13,14] Decision-making capacity, on the other hand, can and should be assessed by anesthesiologists and other clinicians. Evidence that a person can make a decision includes the ability to understand the current situation, to use relevant information, and to communicate a preference supported by reasons. [6] Decision-making capacity may vary relative to age, situation, mental status, and level of risk in the decision.

Anesthesiologists encounter patients with limited decision-making capacity in at least three situations. The first is the patient who does not have decision-making authority, such as a patient who has been adjudged incompetent for health care decisions or a child who has not reached the age of majority. These patients should be allowed to make decisions commensurate with their capacity, and other decisions should be made by the legal surrogate. For example, an 8-yr-old child usually is capable of choosing between an intravenous and inhalational technique for induction of anesthesia, but the same child may not have the capacity to choose whether to have the operation. The second situation is the patient who usually can make decisions but whose decision-making capacity is temporarily altered by, for example, preoperative sedation or pain medicine for nonemergent surgical ailments such as kidney stones or a broken bone. Anesthesiologists must then decide whether a patient can consent to anesthesia. The clinician needs to use clinical judgment, balancing the medication given and its expected effects and the ability for the patient to show evidence of rational reasoning and understanding, to determine if the patient is able to make the specific decision. Anesthesiologists should remember that when the effect of preoperative sedation precludes substantial reasoning and understanding of the proposed anesthetic management options and risks, family members and spouses cannot consent for the patient unless they are recognized legal guardians. The third situation is the patient who appears to have baseline difficulties in decision-making capacity. Determining how to proceed requires some of the same clinical judgment needed in the patient who has temporarily altered decision-making capacity. The anesthesiologist may wish to seek assistance from colleagues in ethics consultation, psychiatry, and law in deciding whether the patient is sufficiently competent to proceed without legal adjudication of competency.

The situation is, in some sense, clearer when questions about consent arise for a patient who is already under general anesthesia. Although as a general rule consent should be obtained from the patient only after the patient has awakened and recovered from the anesthetic, extenuating circumstances may be important. If, for example, the anesthesiologist thought that unanticipated pulmonary artery catheter monitoring was urgently needed to appropriately manage intraoperative myocardial ischemia and delay would very likely result in harm to the patient, then it may be appropriate to proceed with insertion without having obtained informed consent for the procedure, appealing to the same justification as used in emergency situations (explained in sections that follow). This decision requires balancing the principles of autonomy and beneficence. Although the patient's spouse or family members would have no legal authority to give consent in this situation, seeking their understanding and agreement would be advisable and respectful of familial obligations and responsibilities.

A more difficult situation may be when an anesthesiologist believes a surrogate is making a decision that is not fully in the patient's best interests. The extent to which the clinician must intervene between a patient and his or her surrogate's decision depends primarily on how harmful the decision is to the patient, from the clinician's point of view. The extent of harm can be considered on a continuum. At one end is the classic example of a blood transfusion in the child whose parents are Jehovah's Witnesses. It is well recognized that a surrogate is rarely permitted by the court to refuse a medically necessary transfusion for a minor and an anesthesiologist in this situation should not hesitate to seek legal authorization for the transfusion. On the other end may be the use of postoperative epidural analgesia for a child having bilateral ureteral reimplantation. Although the pediatric anesthesiologist may strongly believe that the child would benefit from the epidural analgesia, adequate pain control can be obtained by other methods, and so the loss of benefit to the child is less significant. The obligation of the anesthesiologist to intervene is thus attenuated. But many dilemmas are less clear. What about the incompetent elderly patient with chronic obstructive pulmonary disease whose surrogate is insisting on a general anesthetic for heel ulcer debridement? The level of intervention that is appropriate depends on fairly imprecise estimates of the likelihood of problems with general anesthesia and being unable to extubate the trachea at the end of the procedure. This situation falls in between the two more clear-cut examples given before and illustrates the difficulty in knowing to what extent the anesthesiologist should intervene.

Anesthesiologists should be cautious in judging that a surrogate's decision is significantly harmful to the patient. In our heterogeneous society, people legitimately prioritize values differently and disagreement with a physician does not necessarily constitute mistreatment. [15] Physicians must be respectful of these decisions. Furthermore, intervening has significant psychological costs for both the surrogate and physician and should not be undertaken lightly. Resolving this kind of problem should begin with fully informing the surrogate (see Informed Refusal) about the benefits of the alternative approach. The physician should obtain, if appropriate, help from other care givers or ethics consultants with communicating with the surrogate or informally assessing the appropriateness of the surrogate's choice. The ultimate intervention is to ask for legal intervention to order a specific action or to have someone else assume surrogacy. The unpleasantness of this path, however, should not deter the anesthesiologist from pursuing it if necessary. The primary obligation is to the patient, not to the decision maker.


Institutional requirements are based on local statutes and define the appropriate information standard and the manner in which it must be documented. The most common theory of suit relating to informed consent is negligence (Table 1). [11,13]

Table 1. The Concept of Negligence 

Table 1. The Concept of Negligence 
Table 1. The Concept of Negligence 

Anesthesiologists have a duty to disclose material information. Exceptions to this obligation may include patients who choose not to be informed, emergencies in which a valid informed consent cannot be obtained, and situations of therapeutic privilege. Physicians employ therapeutic privilege when they choose to withhold information because they believe disclosure would be significantly injurious to a patient. Therapeutic privilege has a narrow, limited scope and should be used prudently and only after careful deliberation. Simply because information is undesirable or upsetting to the patient does not mean that such information should be withheld. Indeed, the requirements needed to invoke therapeutic privilege are far more rigorous and center on a patient becoming “so ill or emotionally distraught on disclosure as to foreclose a rational decision, or complicate or hinder treatment, or perhaps even pose psychological damage to the patient.”***

Negligence relating to the informed consent process may occur if the anesthesiologist provides a disclosure that is insufficient to allow a patient to make an informed decision and an injury subsequently occurs, even if the injury was foreseeable and in the absence of a treatment error. [16] To determine if sufficient information was given, the courts look for materiality and causation. Materiality assesses whether the information given met standard of care, which for most jurisdictions in the United States is either the professional practice standard or the reasonable person standard. If the disclosure did not meet standard of care, then it may be considered in breach of duty. Some experts suggest erring toward the usually more comprehensive reasonable person standard even when a particular state uses the professional practice standard. [13] Causation then assesses whether sharing the omitted information would have caused the patient to choose a different option. [16,17] Most jurisdictions use the objective standard, which bases causation on whether a hypothetical reasonable person would have used the additional information to make a different decision. Some jurisdictions use the subjective standard, which is contingent on whether the specific patient involved would have made a different decision. A few jurisdictions combine the two standards by heeding the objective standard while considering factors specific to the patient and situation. Courts may also consider how the information was given. For example, the informed consent discussion should occur in a setting conducive to decision making, giving the patient a chance to ask questions and consider answers. Talking to the patient as they are wheeled into the operating room is wholly insufficient. Nor should preprinted consent forms be relied on to successfully impart information. [18] And although a signed consent form does provide strong documentary evidence of some discussion about risks, an anesthesiologist may still be exposed legally if the document is signed in situations in which the patient is rushed or the form is presented as “for the lawyers.”[11]

Anesthesiologists should not look at the disclosure process as armor against medical malpractice liability if an adverse event happens. Informing a patient about a risk does not eliminate liability for its occurrence. Liability is based on negligence theory and depends mainly on whether the standard of care was met and if the failure to meet the standard of care was a proximate cause of injury.

No defined disclosure technique can guarantee legal protection and ethical excellence. Although there are standard factors that should be disclosed, neither the professional practice standard nor the reasonable person standard defines precisely what must be included (Table 2). As such, determining what to disclose is part of the art of medicine. The depth of discussion should vary in part with the level of risk. In the healthy 2-yr-old receiving anesthesia for circumcision, the risk of death could be considered under the “less likely but more dangerous” risks of anesthesia. On the other hand, the same child being considered for a liver-bowel transplant has a much greater risk of death that should be discussed with the more common risks. When preparing to obtain informed consent, the relevance of the information and not the rote citation of a list should guide disclosure. [11] Such information clutters the informed consent process. [13] One definition of what constitutes relevant risks for a procedure is events that have a 10% incidence of temporary complication or a 0.5% incidence of permanent sequelae. [9]“The acid test is whether a serious complication is likely enough to occur that a reasonable person might choose to refuse the procedure or seek an alternative.”[11]

Table 2. Standard Disclosure Requirements for Informed Consent *RF 56 

Table 2. Standard Disclosure Requirements for Informed Consent *RF 56 
Table 2. Standard Disclosure Requirements for Informed Consent *RF 56 

This last statement is complicated by the fact that there is conflicting evidence about what patients consider to be important. Various reports have indicated that patients younger than 50 yr may prefer more information than older patients, whereas sex, socioeconomic status, and previous experience with anesthesia were less predictive of desires for disclosures. [19,20] In a study of parents with children having surgery, 75% of parents wanted to know “all possible risks [of anesthesia],” and 25% of the parents wanted to know only the risks of anesthesia “that were likely to occur [or] those that would result in significant injury to my child.”[7] We suggest that the patient should determine the level chosen. [8,19,21] After initial statements about the more common risks, a phrase such as, “There are other less likely but dangerous risks to anesthesia. Would you be interested in hearing about them?” allows the patient to control the extent of disclosure. This does not appear to be legally problematic. [13]

Some specific events should be included in the process, such as those involving instrumentation of the airway and complications of invasive monitoring. Risks and benefits of each anesthetic option should be discussed, as well as the possible use of a secondary plan, such as general anesthesia for monitored anesthesia care. [11] Anesthesiologists should also be forthright about areas of uncertainty, whether it be in the anesthesiologist's or the anesthetic community's knowledge. [11] The patient should be informed if personnel other than the interviewing physician will be providing anesthesia care. Otherwise, anesthesiologists may be liable for “ghost” treatment, which occurs when a patient is explicitly or implicitly led to believe that one care giver will be providing care (such as an anesthesiologist), when it is actually rendered by another care giver (such as a nurse anesthetist or a resident). Anesthesiologists must also be careful in explaining the terms they use. In one study, one in two patients did not know what a nasogastric tube was, one in four thought fasting referred only to solid foods, and one in five thought antibiotics were used to relieve pain. [22]

It is helpful to discuss the patient's path to the operating room. Patients should be told where they will go, what will happen to them at each stop, and who they will see when they come to the operating room. [23,24] Particularly important are realistic time estimates. Information relevant to postoperative care such as pain management and returning to the activities of daily living is also important to patients. [19,20,25] Creating practical expectations decreases anxiety and contributes to the patient's overall happiness.

Autonomous Authorization 

Respect for autonomy is sometimes misinterpreted as “do whatever the patient wants.” In truth, only informed patients can rightly exercise their autonomy. [26] The principle of respect for autonomy is better interpreted as the right of informed patients to follow a self-chosen plan voluntarily. [8] Voluntarily means that a 68-yr-old woman with severe chronic obstructive pulmonary disease who needs cataract surgery should not be forced to accept regional blockade with sedation when she prefers to receive general anesthesia. This does not mean that the anesthesiologist cannot explain anesthetic options and offer an opinion as to which is best. Persuasion, the act of influencing through legitimate arguments, is a justifiable technique for educating patients. Coercion, the act of affecting behavior through the use of a credible threat, is not. Properly informing this woman about options may help her consider a technique previously rejected because of misconception or misinformation. The patient may still prefer general anesthesia for her cataract operation after the anesthesiologist has attempted to make her fully informed. Thus the concept of informed consent must accept the possibility of informed refusal.

"It is now clearly established in medicine, ethics, and law that a competent patient has the right to choose or refuse medical treatment. What is not clearly established, however, is the extent to which society and health care providers are obligated to accede to these choices …. the issue becomes problematic when a patient's request conflicts with medical options." [27] Thus, if a patient refuses a procedure without all the relevant information, the physician has not fulfilled the tenets of informed refusal and, indeed, may be legally liable for injury resulting from lack of information. Although this is more commonly thought of in situations of accepting or refusing therapy, the same concepts hold in obtaining informed consent for anesthesia. When a patient refuses a recommended procedure or technique, the anesthesiologist should err on the side of giving additional information to the patient about the consequences of rejection. In the example cited above, this woman should be educated about the risks of being dependent on mechanical ventilation and the associated rigors of possibly being in an intensive care unit after receiving general anesthesia for her cataract surgery, before accepting her preference for general anesthesia.

The process of obtaining informed consent should conclude with the patient intentionally authorizing or requesting a provider to do a specific procedure. All other requirements can be fulfilled, but if the patient does not give some clear indication that this technique is wanted, the care giver has not obtained informed consent. An anesthesiologist best achieves the spirit of informed consent by asking questions such as, “Is this a plan you want to follow?” or “Do you wish to proceed?” Even the nonverbal patient can show authorization with a tap of the finger or a nod of the head.

Obtaining informed consent is an integral step in establishing the unique relationship between a patient and an anesthesiologist. To affect a functionally successful relationship with the patient, the anesthesiologist must recognize certain limitations inherent to being an anesthesiologist. Anesthesiologists rarely have the opportunity to develop the long-term patient relationships necessary to build extensive trust and rapport, and current cost-containment measures often predispose to meeting patients only minutes before surgery. [28] This can be somewhat mitigated by establishing preanesthetic clinics or communicating by phone the day before surgery. The anesthesiologist has a responsibility to make efforts to reduce patient anxiety, to enhance patient comfort and confidence, and to encourage the patient's involvement in decision making.

Patients and their anesthesiologists are well served by developing a fiduciary relationship based on trust and confidence. Although the terms fiduciary and trustee have legal definitions that are not strictly applicable to the patient-physician relationship, these terms are often used (as they are here) in a nonlegal sense to describe the ethical obligations the physician has to the patient. As the patient's trustee, the physician is obligated to loyally promote the “patient's interests as the patient defines them.”[29] The fiduciary relationship “emphasizes the importance of treating each patient as an individual, respecting the patient's definitions of his or her vital medical interests and encouraging the patient to participate in decisions about care to the extent he or she wishes.”[29] A fiduciary relationship and its obligations commence when the patient and anesthesiologist agree to an anesthetic plan. The anesthesiologist is then bound to further these interests.

Reciprocal truth telling and sharing of feelings is necessary for a patient-physician relationship to be valid and fruitful. The anesthesiologist must be forthright about relevant risks, benefits, and concerns. Truth telling, however, does not equate to forcing information on patients. A patient may actively choose not to receive information. [30]

Patients have the right to confidentiality. A patient's communication of a fact to a physician is an expression of the patient's control of the fact and is not a waiver of future control of the fact. [6] The fact should not be shared with others without the patient's direct or implied consent. Anesthesiologists should also be careful about casual conversation harming patient confidentiality, such as in hospital cafeterias or on hospital elevators. [31]

Aside from the need for confidentiality as a way to show respect for the patient, the belief in confidentiality allows the patient to trust and be honest with the physician. [32] When a patient does not believe in a care giver's ability to maintain confidentiality, the resulting lack of trust may lead to suboptimal care.

Consider a 28-yr-old man who uses cocaine, plays basketball, and breaks his ankle. His anesthesiologist would like to know this information, and for the most part, the patient would be willing to reveal it. In a military situation, however, the patient would have good reason to believe that admitting to cocaine use would result in damaging ramifications. The patient may not be forthright, and as such, he may have an increased anesthetic risk.

Providing multiple care givers for an individual patient may place additional demands on the informed consent process and interfere with the fiduciary relationship. For instance, in some cases one anesthesia provider will perform the preoperative evaluation and informed consent, another will provide the immediate perioperative care, and a third will see the patient after the operation. Some institutions have systems in which cases are “taken over” by care givers who are scheduled to finish the cases that continue later in the day. Many anesthesiology groups use the anesthesia care team practice of providing care.

Anesthesiologists should examine their current practices of using multiple providers to determine if system improvements could be made. Being aware of such concerns and making an effort to establish a fiduciary relationship on the day of surgery may be an effective way to prevent the potentially detrimental effects of involving multiple care givers. As for other care givers finishing cases or the anesthesia care team practice, the Guidelines for the Ethical Practice of Anesthesiology correctly state, “If responsibility for a patient's [anesthesia] care is to be shared with other physicians or non-physician anesthesia providers, this arrangement should be explained to the patient.”**** The guidelines also instruct the anesthesiologist to ensure the same level of perioperative care as if a single anesthesiologist were providing all of the care to the patient.

Limitations to achieving a robust fiduciary relationship should be minimized. One possible hindrance can be variations in care in presumably well-meaning ethical care givers. Ample evidence indicates that individual physicians may vary care with respect to skin color, [33–37] socioeconomic status, [34] sexual preference, [38] and disease process. [38] A physician's behavior may also be influenced by the type of health care coverage and the financial incentives involved. [39–41] Studies of variation of care secondary to race center on differences related to clinical or social factors and tend not to be related to remuneration or access to health care. Because anesthesiologists have great latitude in the daily management of their patients, they are prone to variation in, for example, the time taken to premedicate a pediatric patient, to determine a patient's preferences for an anesthetic, and to provide appropriate, cost-effective, high-quality postoperative pain management. Physician awareness of the existence of such variations is an initial requisite to achieving the ethical practice of medicine and to preventing the occurrence of limitations that do not permit the most robust fiduciary relationship possible.

Anesthesiologists must recognize the importance and complexity of supporting a patient's religious beliefs, the most prominent of these being those of a Jehovah's Witness regarding blood product transfusion. Jehovah's Witnesses interpret Biblical Scripture to prohibit taking in blood because it holds the ‘life force’ and “anyone who partakes of it shall be cut off”***** from eternal life after death.****** The care of Jehovah Witnesses has become more complex with the greater ambiguity in transfusion recommendations and the wider variety of options to limit blood loss and to optimize oxygen-carrying capacity. [42,43] For this reason, anesthesiologists who provide such care have an ethical obligation to have authoritative knowledge about available options.

Jehovah's Witnesses can have different interpretations about the prohibition of blood transfusions, and the clinician must clarify precisely what the patient considers acceptable. [44,45] Wholly acceptable anesthetic techniques to reduce blood loss include deliberate hypotension, deliberate hypothermia, and hemodilution. Most Jehovah's Witnesses accept synthetic colloid solutions, dextran, erythropoietin, desmopressin, and preoperative iron. [46] Some Jehovah Witnesses accept autologous banked blood or cell-saver blood, and some accept blood removed at the beginning of surgery and returned in a closed loop. Although blood components, autologous blood, and banked blood are generally unacceptable, these specifics must be discussed with the patient at that time. When obtaining informed consent, it is crucial to precisely document what interventions are acceptable to crystallize and clearly communicate the patient's desires and to provide legal documentation for the anesthesiologist.

Anesthesiologists obtaining informed consent from Jehovah's Witnesses must be sensitive to anecdotal reports of patients feeling external pressure to conform to another's desires regarding transfusions. Anesthesiologists should consider discussing transfusion therapy privately with the patient if this is a concern. By the same token, anesthesiologists providing care must be certain they are capable of fulfilling the patient's requests, otherwise they should not agree to provide anesthesia. Indeed, the anesthesiologist and surgeon should provide nonemergent care to the patient only if all parties can agree on the approach to blood management. It behooves the anesthesiologist and surgeon to ensure the understanding and agreement of other operating room personnel.

Nonpregnant adults who are not sole providers are generally free to choose to refuse blood products. For a patient who is pregnant, a minor, or a sole provider, the courts are more likely to intervene and mandate transfusion. [45] This is based on the legal doctrine of parens patriae, the state's power of guardianship to protect the interests of incompetent patients, such as the child of a Jehovah's Witness who would be incompetent to refuse a blood transfusion. Thus the courts have, for the most part, ruled in favor of transfusing these patients. Ambiguity in legal rulings results from the fact that issues relating to transfusions of Jehovah's Witnesses are based on case law, which is more variable than statutory law. It is best then to take each case individually and to freely seek help from local experts and ethics consultants. We suggest pursuing these avenues extensively at first, seeking legal intervention only if the process of discussion with the patient and family fails to achieve a consensus.

We have alluded to the act of an anesthesiologist refusing to provide or withdrawing from a specific patient's care. Physicians may mistakenly believe that the only way to respect and respond to a patient's autonomy is to accede to their wishes. One can, however, respect autonomy without acceding to the patient's wishes. An anesthesiologist not in ethical or moral agreement with the patient will have difficulty providing the care requested. In a nonemergent situation, such an anesthesiologist should withdraw from or refuse patient care if he or she does not feel ethically or morally capable of providing care consistent with the patient's wishes.***********[47,48] Indeed, an anesthesiologist with such an objection of conscience should not be required to violate his or her ethical or moral beliefs in the course of electively caring for patients. In most cases, the anesthesiologist is then obligated to make a reasonable effort to find a competent and willing replacement. In some cases, anesthesiologists may find the requirement to locate an alternative care provider ethically objectionable. Consider, for example, anesthesiologists opposed to abortion. They may not only refuse to participate in this procedure, but may also be opposed to assisting the patient in finding another physician who would help the patient obtain a therapy to which the anesthesiologist is, in a unique and powerful way, opposed. These issues have not been entirely settled and remain an area about which reasonable people may disagree.

The decision to ethically refuse to provide care can also be based on the anesthesiologist's perception that the patient prefers an anesthetic technique for which the risks so outweigh the benefits that the requested technique is not a reasonable option. To use the example described before, an anesthesiologist may refuse to provide care for the woman who wants general anesthesia for her cataract repair if the anesthesiologist believes that the risk of general anesthesia is just too great compared with available reasonable options such as regional blockade with sedation. Other examples may include a patient who refuses monitoring devices such as arterial or central venous pressure catheters, or the obese adult fearful of needles who wants a mask induction. Some may suggest that pressures to increase efficiency make refusing such care unrealistic in the “real world.” We suggest that the anesthesiologist's first obligation is to the patient, and that external concerns must not erode this principle. This is analogous to an internist inappropriately providing antibiotics because the patient demands it. The antibiotics should be provided only if they are a reasonable medical option in that specific situation. Similarly, this does not mean that the cataract operation should not be done under general anesthesia, which may be a reasonable choice in certain patients. The line of “what is a reasonable option” is necessarily determined by the specific factors in each case and should not be invoked lightly or for the sake of convenience. Acquiescing to patients' demands to the point of significantly increasing the risks of anesthesia is shortsighted, and in the long run is not a successful tactic for enhancing an anesthesiologist's reputation or efficiency.

Refusing to provide care because a patient is infected with the human immunodeficiency virus is unethical. The American Medical Association's Council on Judicial Affairs has stated:“A physician may not ethically refuse to treat a patient whose condition is within the physician's current realm of competence solely because the patient is seropositive for HIV.”[49] The seropositive care giver's legal obligations are vague. [50,51] The Council on Judicial Affairs holds that these care givers should not engage in activities that have a risk of transmission, but which activities involve risk is unclear. [49] The need for seropositive health-care providers to inform patients may depend on the kind of care being rendered and the hospital and its jurisdiction. [52,53]

Withdrawing from the care of a patient when a relationship has already been established is more complex. A physician in an ongoing professional relationship with a patient incurs obligations to the patient that cannot be abandoned until the relationship is properly terminated. Unilaterally discontinuing a professional relationship should only occur after other efforts have been taken to improve the relationship. If, however, a physician wishes to stop caring for a patient, the physician should obtain the patient's approval, help with the transfer of care, and ensure adequate interim coverage. [54] A physician unilaterally terminating a patient-physician relationship without adequate arrangement may be guilty of the legal charge of abandonment. Anesthesiologists withdrawing from care or refusing to provide care should document their actions in the medical records.

In general, it is assumed that patients would consent to treatment in emergency situations. [16] The anesthesiologist needs to rely on his or her good judgment and should obtain as much informed consent as deemed reasonable. Two emergency situations are difficult. The first is when an anesthesiologist would normally refuse to care for the patient, but a willing alternative care giver is not readily available and the anesthesiologist's skills are urgently required. Although each case would need to be assessed on its merits, the body of ethical opinion leans toward requiring a reluctant physician to provide care in these circumstances.**********

The second difficult situation occurs when treatment is urgently needed but there is incomplete evidence that the patient would want to refuse treatment. This scenario is typified by the patient with an unavailable advance directive or by the unconscious patient with a family that declares he or she is a Jehovah's Witness. In general, the former situation would be handled by initially providing life-saving interventions, because that does not preclude the option of limiting care once the content of the advance directive is clarified. The more complex scenario, however, is the Jehovah's Witness who emergently needs blood and is unable to communicate his or her preferences for transfusion therapy. This case differs from the first, because Jehovah's Witnesses believe that transfusion of blood will jeopardize the possibility of life after death. Whereas life support can be withdrawn after it is started, the effects of blood transfusion cannot be reversed. Nonetheless, the legal and ethical consensus leans toward providing care in these circumstances. This is based on the idea that the refusal of life-sustaining treatment must be unambiguous, either on the basis of refusal by a patient with decision-making capacity or on grounds of a clear and valid advance directive. [34] Similarly, the transfusion of a minor in an emergency situation is supported, based on the idea that a child does not have the necessary decision-making capacity at that time.

Modern informed consent is beset by a tension between its spirit and legality. If the anesthesiologist chooses to prioritize the legal sense by viewing the informed consent process solely as a legal arrangement, he or she will not successfully fulfill the ethical obligations of informed consent. Overemphasis of the legal aspect of informed consent leads to an adversarial framework for the relationship between clinician and patient, impeding the desired process of working toward a common goal. By the same token, an anesthesiologist who chooses to disregard the legal components, even with good intentions, ignores safeguards designed to help both patient and clinician. It is natural for anesthesiologists to feel pulled in one direction or another. The patient and physician are best served when the ethical and legal senses of informed consent are viewed as two parallel and equally worn ruts in a carriage path. Providing the best care possible for our patients by aiming at the true intent of the process of informed consent is not always easy. Nonetheless, by being vigilant in the fundamentals of interacting ethically with patients, we can consistently approach the ideal of informed consent.

Case Law 

([55]) Much of informed consent law comes from case law. Case law, also known as common law, started in England during the Middle Ages, when court decisions were written in books known as plea roles. These decisions were then used as the bases for future court decisions. Case law is similarly made in the United States. Court decisions provide interpretations, particularly when there is no definitive statute or when parties disagree about the applicability of a statute. The holding of a court can be binding only in its jurisdiction, although courts in other jurisdictions may adopt the holding's analysis if they choose. The results of these cases, then, are rarely prescriptive and may lead to a collection of seemingly confusing and even contradictory cases that rest on different common law rulings and statutes in separate jurisdictions.

*Salgo v. Trustees of Leland Stanford Hospital. 154 Col. App. 2d 560, 317 P. 2d 170Ct. Appl. 1957.

**Natanson v. Kline. 186 Kan.393,409–410,350 P.2d 1093, rehearing denied, Kan. 186,354 P.2d 670 (1960).

***Canterbury v. Spence. 464 F.2d 772, 1972.

****American Society of Anesthesiologists: Guidelines for the Ethical Practice of Anesthesiology, American Society of Anesthesiologists 1996 Directory of Members. Park Ridge, IL, American Society of Anesthesiologists, 1997, pp 401–3.

*****Leviticus 17:14.

******How can blood save your life? Brooklyn, Watchtower Bible and Tract Society of New York, 1990.

*******American Society of Anesthesiologists: Ethical guidelines for the anesthesia care of patients with do-not-resuscitate orders or other directives that limit care. American Society of Anesthesiologists 1997 Directory of Members. Park Ridge, IL, American Society of Anesthesiologists, 1997:400–1.

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