Consent for Treatment: Informed & Types

Consent for Treatment and Withholding Consent

• Individual rights impact medical consent, emphasizing patient autonomy in treatment decisions.
• Patients can decide on medical or surgical treatments.
• Unauthorized touching can be considered battery, even without harm.

Informed Consent

• Court recognize effective consent as "informed consent."
• Consent requires reasonably complete and understandable information.
• Information includes diagnosis, proposed treatment, risks and benefits, alternative treatments, prognosis, recovery, and consequences of not consenting.
• Physicians must provide information and allow questions.
• Consent given without adequate information is invalid.
• Failure to inform can lead to liability.

Types of Consent

• Legally sufficient consent can be express or implied, differing by method of agreement.
• Express consent is given in words, while implied consent is shown through actions.
• Both require legal competence and understanding.
• Spoken express consent is valid if proven, but written consent is generally preferred due to liability concerns.
• Invalid consent arises when patients lack understanding, as shown in Rogers v. Lumbermens Mutual Casualty Company.
• Hospitals use general consent for routine care and special consent forms for surgery.
• General consent covers routine services and involvement of various staff.
• Special consent is needed for surgery after the doctor explains necessary information.
• Conversations must be understandable, using interpreters if needed.
• Non-physicians are unable to conduct informed consent sessions.
• Forms should name the physician, mention other involved parties, list procedures, confirm patient understanding, cover anesthesia consent, and state explanation receipt.
• Forms also explain unforeseen conditions and possible additional procedures.
• Consent obtained by misrepresentation or under drug influence is invalid.
• Hospitals have consent forms for treatments, reviewed for accuracy and translated.
• Consent forms improve doctor-patient relations and offer protection.
• Enhance communication tactfully, not just for legal formality.

Consent in Medical Emergencies

• Consent isn't required in medical emergencies.
• The law assumes consent in the absence of a competent refusal.
• "Implied consent" happens regardless of age.
• Medical emergencies require a provider to demonstrate timely consent unobtainability.
• Competent adults can refuse life-saving care.
• Emergency involves immediate danger of death or permanent health impairment.
• Quick treatment isn't an emergency.
• Delaying treatment, but still obtaining consent is necessary in the absence of increased hazards to the patient
• The Emergency Medical Treatment and Labor Act provides the minimum definition of 'emergency'.

Extending Surgery

• Unexpected surgical conditions present legal issues regarding consent.
• Complete the original surgery and address any issues later, unless there is a true emergency.
• Additional risks can occur with a second procedure.
• Contemporary consents include language for extending procedures in case of unexpected conditions.
• Physicians must explain surgery aspects to patients and any potential need to extend the procedures in the case of unforeseen circumstances

Healthcare Institution's Role

• Hospital risk management departments have forms for procedures.
• Forms are for physicians' use in counseling patients about risks and alternatives.
• The risk management department has protocols for authorized consent when an individual is unable to do so.

Informed Consent Extremes

• The informed consent discussion should answer questions and ensure comprehension.
• Consider the patient, potential risk awareness, acceptable failure justification, hazard significance, and their role as a physician would they disclose to a relative etc.

Types of Miscommunication

• Misrepresentation of the Facts: misleading patients intentionally or unintentionally.
• In Rogers v. Lumbermens Mutual Casualty Company, true surgery wasn't revealed, leading to appendectomy assumption.
• Full disclosure requires the nature of the diagnosed condition, surgery facts, and probable risks.
• Lack of Information About Consequences: Patient needs inevitable outcome knowledge.
• Bang v. Charles T. Miller Hospital example patient agreed to procedure, but was not informed about the possibility of sterility
• Alternatives to treatments must be explained
• Lack of Information About Risks is the final type of miscommunication.
• Physician explains risks that are relevant to patients.

Rules

• "Reasonable-doctor rule": physicians must disclose what reasonable doctors' would.
• "Reasonable-patient rule": or the "right-to-know", states physicians must disclose facts that are relevant to the patient.
• "Legal Brief", reasonable-patient answers the question of whether or not a person should act with adequate acknowledgement to all perils involved.
• Physicians must not use standard practice, they must follow their duty to their patients.

The Court Decides

• Beyond consent or refusal, the reasonable patient involves informed refusal.
• In Truman v. Thomas, failure to communicate the possibility of cervical cancer lead to patient refusal was a duty.

Caveats

• Physicians must exercise reasonable care.
• However, unless the physicians have proof that a patient knows a given/ apparent significance to a lack of patient information
• Physicians must provide all relevant and significant information
• Unless therapeutic reasons exist, such in the case that the information could be harmful and detrimental to a patient
• All these situations get referred to a jury.

Innovative Therapy & Clinical Research

• Full informed consent from any innovative procedures must be important.
• Ensure that treatments and benefits will be especially evidenced by a specially drafted form.

Differences

• Innovative therapy would work to support the well being of a patient, and be expected to be reasonably successful.
• However, clinical trials/research is a departure and meant to discover new knowledge.

Consent of Spouse or Relative

• No one can consent for you unless otherwise specifically stated.
• A spouse's consent may be in certain circumstances, such in artificial insemination, surrogate motherhood

Legal Decision Point

• All states must have a hierarchy of folks who can consent for an incompetent relative patient.

Life or Death Decision making

• Competent adults may refuse to consent with the knowledge that it be a life or death situation
• If life cannot be saved and there is no sign of expression from the patient, then the law usually presumes consent

Aid in Dying

• The "right to die," doesn't allow one to make affirmative steps to end one's life
• Active euthanasia can be considered a homicide
• Support is there to allow the ill to have a peaceful and expedited death
• Dr, Keovorkian in the 1990's is one particular example of support, he aided in assisted suicide, and was prosecuted.
• There is still great consideration to the ethics/ morals of a patient who wish to end their lives
• Despite opposition and surrounding emotions of the issues, most opinion polls show that there is support of the authorization of the assisted aid into dying
• A few state now permit the ability of terminally ill to request prescription for the terminally ill, as previously mentioned

Death with Dignity Nationwide

• Interactive map of each state's standing for "right to die" www.deathwithdignity.org/take-action/

Incompetence

• Means that the patient does not have a legal status
• Physicians will conduct a professional judgement to assist and see if the patient is competent to understand everything
• Irrationality does not necessarily indicate that incompetence
• Case example: a person with extensive gangrene cannot make the reasonable decision with surgery or amputation options

Patient Interests

• The patient gets to decide
• Protection of innocent third parties
• Preservation of the ethical integrity of the medical profession
• Prevention of suicide
• Courts can treat/overrule the decisions of patients who are "objectionable" by ordering treatment.

The Natural Death Act

• Healthcare providers are immune from liability for complying with ones' patient's wishes.

Quinlan and Cruzan

• Legislatures reacted and enacted specific laws, natural death, living will, death with dignity to allow patients and those that are terminal.

Durable Power of Attorney (DPOA)

• Individual will get to assign/designate a health care proxy if he/ she were to be incompetent

Legal Brief

• An agent is given the authorized to act on behalf of the principal but it will not be for death or disability reasons.

UHCDA

• Uniform healthcare directions acts are codes that are backed by the AMA
• To provide direction of healthcare, and decisions of directive

Patient Self Determination Acts (PSDA)

• Facilities federally funded need to share the policies and facilities of advanced directives
• These are routine to many

National POLST Paradigm

• The Paradigm makes it so that professionals speak to the patients of what they would what if they became ill or frail.
• The National Paradigm is a physician's directive for life sustaining treatments
• The Form states that they either 1. Extend the life 2. receive only select treatments or 3 to have death occur naturally.

Legal Brief

• Know in other jurisdiction but each does exist in some for what is written.

Aid in Dying

• It is legal to allow "natual death"
• Patients do not receive meds for that process, but in some situations
• The State will permit a physican to administer meds to the patient
• A couple of the qualifications: patient has an illness and they are deemed competent
• The patient must be able to verbally express, and also provide a written document that they had signed.

In Summary

• This chapter reviews consent concept, informed consent - standards of medical practice. patient must have basic understanding, the right to refuse, patients who cannot make choices.
• Methods for documenting patient end of life also are reviewed.