Patient Consent Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University

Consent Consent is the voluntary agreement by a person who possesses sufficient mental capacity to make an intelligent choice to allow something proposed by another to be performed Express consent is a verbal or written agreement authorizing treatment Implied consent is determined by some act, which raises a presumption of consent

Informed Consent Informed consent is a legal concept that provides that a patient has a right to know potential risks, benefits, and alternatives of a proposed treatment It requires that a patient have a full understanding of that to which he or she has consented Any glimmer of uncertainty as to a patient’s desires in an emergency situation should be resolved in favor of preserving life

Consent and Ethical Codes AMA Code of Medical Ethics “the patient has the right to receive information from physicians & to discuss the benefits, risks, and costs of appropriate treatment alternatives” ADA Code of Ethics “the dentist has a duty to respect the patient’s rights to self-determination and confidentiality”

Consent and Ethical Codes APA Code of Ethics “A pharmacist promotes the right of self-determination and recognizes individual self-worth by encouraging patients to participate in decisions about their health” ANA Code of Ethics “Patients have the moral and legal right to determine what will be done with their own person”

Proof of Consent Oral Consent Written Consent Implied Consent

Written Consent Should Include The nature of the patient’s illness or injury The name of proposed procedure or treatment The purpose of proposed treatment The risks and probable consequences of proposed treatment The probability proposed treatment will be successful Any alternative methods of treatment along with their associated risks and benefits The risks and prognosis if no treatment is rendered An indication that the patient understands the nature of any proposed treatment, the alternatives, the risks involved, and the probable consequences of the proposed treatment The signatures of the patient, physician, and witnesses The date the consent is signed

Implied Consent Implied consent can be assumed when immediate treatment is required to preserve the life of a patient or to prevent impairment of the patient’s health and it is impossible to obtain the consent of the patient or representative Unconscious patients are presumed under law to approve treatment that appears to be necessary

Statutory Consent An emergency in most states eliminates the need for consent When a patient is clinically unable to give consent to a lifesaving emergency treatment, the law implies consent on the presumption that a reasonable person would consent

Capacity to Consent Clinical assessment of decision-making capacity should include the patient’s ability to understand the risks, benefits, and alternatives of a procedure evaluate the information provided by the physician voluntarily make decisions regarding his or her treatment plan without undue influence by family, friends, or medical personnel

Capacity to Consent Before declaring an individual incapacitated, the attending physician must determine with reasonable degree of medical certainty that the patient lacks capacity make a notation in the medical record describing the reason for incapacity

Adequacy of Consent A physician should provide as much information about treatment options as necessary based on a patient’s personal understanding of the physician’s explanation the risks of treatment the probable consequences of the treatment the needs of each patient, which can vary depending on age, maturity, and mental status

Who May Authorize Consent? Competent Patient Spouse Guardian Parents of Minor

Competent Patient When there is no compelling state interest that justifies overriding an adult patient’s decision, that decision should be respected State interests include: preserving life preventing suicide safeguarding the integrity of the medical profession protecting innocent third parties

Spouse Case: Greynolds v. Kurman consulting physician, ordered a cerebral angiogram patient was a major risk for invasive procedure patient suffered a stroke during the procedure malpractice action filed evidence supported judgment for lack of informed consent

Parental Consent Parents generally have the right to authorize medical care for minor children

Parents Refuse Blood Transfusion Parents refused to consent to medically necessary care for their minor child based on religious convictions The trial court appointed the hospital as a temporary guardian Supreme Court of Nevada affirmed order of the lower court. The child was unable to make decisions for himself, so the state’s interest was heightened The parents’ liberty interest in practicing their religion must yield to the child’s welfare

Consent by Minors Parental consent is not necessary when a minor is married or emancipated The courts have generally held that the consent of a minor to medical or surgical treatment is ineffective and that the physician should secure the consent of the minor’s parent

Incompetent Patients The mentally incompetent cannot legally consent to treatment

Right to Refuse Treatment A competent adult patient has the right to refuse treatment and be secure from any touching A competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment

Right to Refuse Treatment “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages, except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.“ Justice Cardozo, Schloendorff v. Society of New York Hospital (1914)

Courts Use a Balancing Test The courts balance a state’s interests: Preservation of life Protection of third parties Prevention of suicide Against the decision of a competent adult’s decision to refuse treatment

In re Fetus Brown (1997) The Supreme Court of Illinois held that the state’s interest in the well-being of a viable fetus outweighed the patient’s rights to refuse medical treatment. The appellate court held that it could not impose a legal obligation upon a pregnant woman to consent to an invasive medical procedure for the benefit of her viable fetus

Florida Case Health care providers must comply with the wishes of a patient to refuse medical treatment unless ordered to do otherwise by a court. A health care provider cannot act on behalf of the state to assert state interests. When a health care provider, acting in good faith, follows the wishes of a competent and informed patient to refuse medical treatment, the health care provider is acting appropriately and cannot be subjected to civil or criminal liability

Right to Refuse Treatment for Religious Reasons – Case 1 A woman who was a Jehovah’s Witness was given a blood transfusion against her wishes (but with the permission of her husband, who was not a Jehovah’s Witness) She won her action for assault and battery, but a jury may find that she is entitled to only nominal damages because the hospital acted to save her life (Ohio 1994)

Right to Refuse Treatment for Religious Reasons – Case 2 A woman who was a Jehovah’s Witness was given a blood transfusion after the delivery of her baby against her wishes and those of her husband, who was also a Jehovah’s Witness The court held that the lower court’s order to give her blood transfusions violated her common law right of bodily self-determination (Conn. 1996)

Right to Refuse Treatment for Religious Reasons A Washington state court declared that a 14-year old patient with leukemia had the right to refuse a blood transfusion for religious reasons