Informed consent can be challenging during “normal” times, but it has become increasingly complicated during the COVID-19 pandemic. The informed consent process ensures that a patient or their surrogate decision-maker understands the benefits, potential risks and any alternatives of a certain procedure or intervention. A patient can provide informed consent for her/himself if she/he has decision-making capacity that implies that the patient understands the benefits, risks and potential alternatives of a given procedure and can recite that information back to the operator.
During the COVID-19 pandemic, the added complexity to this process is that patients frequently presented to care in severe hypoxic respiratory failure and concomitant encephalopathy or delirium that precluded a full informed consent discussion before emergent stabilization could be performed. Additionally, families and surrogate decision-makers were not allowed into the hospital to participate in these critical goals of care discussions. Furthermore, certain areas like New York City were inundated with patients and medical systems were overwhelmed such that rationing of healthcare resources frequently was required adding another layer of complexity with its associated ethical challenges.
Medical systems also had to consider the safety of its medical and nursing staff which either delayed care at times or made certain treatments unavailable to certain patients that would have been available to them at other times. When medical resources had to be rationed, disaster triage was initiated that prioritized those most likely to survive which tended to be younger, healthier patients. The medical resources that were the most in need were ventilators and ICU beds. Therefore, there were times when elderly patients with multiple medical co-morbidities who were infected with COVID-19 were not even offered the options of intubation or CPR. These decisions were made because of equipment rationing, chance of survival and to mitigate the risk of staff infection while also preserving personal protective equipment (PPE).
Additionally, treatments that may have been offered during “normal” times may not have been offered during the pandemic because of the risk of aerosolization. Examples of operations and procedures that were considered aerosol-generating procedures include bronchoscopy, laparoscopic operations, tracheotomy, GI endoscopies and noninvasive positive pressure ventilation (e.g., CPAP or BiPAP). Therefore, emergent operations were frequently performed as open abdominal operations and other procedures that would have been offered at other times were no longer offered to minimize viral transmission. How this affects informed consent is that alternatives that were not an option were frequently not discussed or offered which included not offering the option of CPR for certain elderly or medically fragile patients with severe COVID-19 infection. Patients or families may not agree to the change in code status to “DNR/DNI” but they do not have a choice given the need to also protect and prioritize the safety of healthcare workers who are needed to care for everybody during this pandemic. This obviously raises ethical issues when serving the needs of the community at large becomes paramount over the rights of individuals.
This raises the question about whether doctors should share information about unavailable but standard treatment alternatives during their informed consent discussions? For example, under “normal” times, a patient presenting with acute cholecystitis would be offered the option of a laparoscopic cholecystectomy, but the potential for increased viral transmission might make a surgeon only offer the option of open cholecystectomy and not discuss the fact that a laparoscopic cholecystectomy would be the standard operation but can not be done because of the potential risk of increased viral transmission. This is the difference between disclosure and non-disclosure of available treatments.
All of these factors that alter the informed consent process and raise ethical considerations can also lead to moral distress of healthcare providers.