Who Should Actually Sign as the Witness on a Surgical Consent?

Who Should Actually Sign as the “Witness” on a Surgical Consent?

Most doctors don’t give a second thought about this. We’re taking the signature of whoever is with the patient. And because it’s been the practice in most centres, we assume that it must be the right practice.

But let me make you think about it for a second. Let’s say a patient files a lawsuit on a doctor, and during the legal proceedings the informed consent is brought. The consent form is signed but the patient claims he was not in a physical or mental state to understand what was being told to him before signing that consent form. The doctor is obviously going to say that the patient was in a state to comprehend everything being told and willingly signed. But who is the court going to believe?

The witness who signed? And if it’s a relative of the patient whose favour do you think the witness is going to testify?

This situation is exactly why thinking about whose signature you are taking as the witness is worth spending a moment on.

So what does the law say?

Well interestingly, the law actually says a witness is NOT legally mandatory for informed consent. It the patient who has the sole autonomy over his body to decide the willingness for the procedure (provided the individual is an adult and is in a state to provide consent).

Then why do we take the witness signature? Because having a witness can strengthen the credibility of the consent if a dispute ever comes up… hopefully that is.

But we must realise that the witness is not there to “approve” the surgery. Their job is simply to attest that the consent discussion happened and the patient signed voluntarily.

Let me clarify here to avoid confusion in some of your minds, I am NOT talking about a surrogate consent, which is applicable when the patient is a minor or the patient is not in a state to give consent, I’m talking about the witness signature for when the patient is in a competent state to give the consent for the procedure.

As I mentioned, the role of the witness is to attest that the consent process happened, not really give consent for the actual process. But the question still remains- Who should sign as the witness for the surgical consent?

Here’s how I personally look at it — from both a practical and medicolegal perspective.

- The best option: a genuinely neutral person

This could be:

• another patient,

• an attender of a different patient,

• anyone nearby who isn’t connected to the case.

These persons are considered neutral because the person doesn’t have any conflict of interests, and not really involved in the patient treatment.

- A hospital staff member

If a neutral person isn’t available, the next safest choice is a staff member (preferably not involved in the patient’s care) — a nurse, physiotherapist, admin etc.

They could be considered as biased considering they are hospital employees, but you’d rather have a bias favouring you rather than against.

- The usual default: the patient’s relative/attender

We all use relatives because they’re right there. And yes, it’s acceptable.

But they’re naturally biased, and if the consent is disputed, more often than not, they are going to tow the same line as whatever the patient claims.

So it’s not wrong — just not ideal.

Who should NOT be the witness:

1 Anyone who can’t understand the language used for the consent explanation

2 Anyone whose details can’t be traced later

3 Anyone the patient is uncomfortable with

A few small habits that make a big difference

• Write the witness’s full details (name + phone number (preferably address as well).

• Make sure they’re present when the patient signs.

• If a translation was done, the witness should know the language it was translated to.

How do you all manage this in your practise? Is it almost always the relative who signs?

Would love to hear how different setups handle this on a busy day.

Share this with your colleagues if you think it’s helpful…Or atleast the colleagues you don’t want sued.

#Doctors #healthcare #MedicoLegal #InformedConsent #consent