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09/22/2015

Informed Consent Doesn't Make Athletes Safer

Concussions & Sports–Legal & Ethical Review: Part 7
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Requiring athletes to acknowledge receipt of concussion-related educational materials may limit liability, but it won’t necessarily make them safer



The authors16 of The Journal of Law, Medicine & Ethics' report on informed consent in athlete concussion education note that:

“By providing athletes with concussion-related information and requiring their express acknowledgment of the inherent risk of concussion as a part of the sport prior to participation, schools/coaches/leagues may be limiting their liability in that area. However, this does not mean that the leagues can completely disregard the risk of concussion. Even if concussion is a risk inherent in these sports, under the primary assumption of risk doctrine there is still the duty not to increase the risk. However, the assumption of risk doctrine may provide a disincentive for relevant stakeholders to work toward reducing the risk of concussion.”

Even those programs that required acknowledgment of these materials found that, when the athletes were asked about it at a later date, 40% did not recall having done so. This raises the question: if they don’t remember receiving the documentation, how much concussion education is actually sinking in, and is it an effective preventative measure at all?

These facts underscore the need for continued and repeated exposure to concussion-related material by the athletes. Even if the initial distribution of the materials is acknowledged, and the institution has achieved some sort of protection from litigation as a result, what about the health and safety of the 40% for whom the information was clearly not impactful? Only repeated exposure to these materials can help increase the percentage of athletes who will recognize concussion symptoms, and the seriousness with which those symptoms need to be treated.

There’s an interesting debate to be had on the concept of “informed consent” as well, and what a healthcare provider’s ethical obligations are in terms of steering a patient, or the patient’s parents, toward the best decision. The purpose of informed consent is two-fold: primarily, it’s purpose is education. But it is also a method of empowerment—it puts patients (and/or their parents) in a position to be informed decision makers.

But do these facts about informed consent then absolve the athletic trainer or medical personnel if a player wants to return to play before the medical staff feels he is ready? Some would argue that it does not—there is an ethical obligation that exists for the caregiver, despite informed consent.

A study in Pediatrics, the journal of the American Academy of Pediatrics, examined the informed consent issue as it applies to immunizations.17 In the study, different methods of influencing parents to immunize their children, something many parents are against despite a doctor’s recommendation, were examined (vaccine-hesitant parents were oversampled). For some of the parents, doctors used presumptive language (“Well, we have to do some shots.”) while, for others, doctors used participatory language (“What do you want to do about shots?”). The results showed that parents, even those resistant to vaccinating their children, were far more likely to agree to the vaccines when the doctor used presumptive language.

In terms of the issue of sports concussions, this study demonstrates the idea that the athletic trainer and healthcare provider to the athlete can influence return-to-play decision making beyond simply receiving informed consent. If a player makes a decision that is in conflict with his best interest, in the opinion of the team medical staff, the athletic trainer and doctor can (and, arguably, should) attempt to use presumptive language to influence the player’s decision.

In other words, washing your hands of a player’s bad decision, simply because of the existence of informed consent, might meet legal standards, but not ethical standards.

The American Journal of Bioethics recommends steps that can improve informed consent.5 These involve including the patient in the decision-making process, and repeated checks on the patient’s level of comprehension about the issues at hand. “The capacity to read the consent form is not enough; one must understand the nature of the information provided,” write the authors. “The consent form is just one part of the informed consent process.”

The issue of informed consent is especially complicated on the sidelines, says the AJB. Even if consent is obtained before a game, the athlete reserves decision-making rights after an in-game injury, in most cases. “In this scenario, how adequate can informed consent be, particularly if the situation involves head trauma?”

The return-to-play decision represents the main ethical conflict in sports medicine, according to the AJB. A survey of sports medicine professionals indicate a feeling of palpable and, sometimes, competing pressures emanating from coaches, players, and parents.



5Daniela Testoni, MD, et al, “Sports Medicine and Ethics ,” The American Journal of Bioethics, 13:10 (2013): 4 - 12.
16Christine M. Baugh, M.P.H., et al, “Requiring Athletes to Acknowledge Receipt of Concussion-Related Information and Responsibility to Report Symptoms ,” The Journal of Law, Medicine & Ethics, 42:3 (2014): 297 - 313.
17Douglas J. Opel, MD, MPH, et al, “The Architecture of Provider-Parent Vaccine Discussions at Health Supervision Visits,” Pediatrics, 132:6 (2013): 1037 - 1046.

A Legal & Ethical Review of CONCUSSIONS & SPORTS
A Legal & Ethical Review of CONCUSSIONS & SPORTS
Key Takeaways for the Athletic Trainer, Athletic Director, Coach, Heath Care Provider, and Parent


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