Chapter 11: Consent for Treatment and Withholding Consent

Physician form should include:

-name the physician -point out that others will be involved in the patient's care -list in lay terms the procedure(s) to be undertaken -recite that the patient understands -recite consent to the administration of anesthesia, if any, under the supervision of a named physician or nurse -state that the patient has received an explanation of the contemplated procedures.

Mature Minors

A common-law doctrine at work in a few states allows mature minors to consent to medical procedures on their own initiative. For example, the Supreme Court of Tennessee adopted the "mature minor exception" to the parental consent requirement in the case of a patient who was nearly 18 years old at the time she sought treatment.

Consent Issues for Incompetent Adults

A patient may be unable to grant consent by reason of incompetence or other disability. A duly appointed guardian or healthcare surrogate can give valid consent based on the patient's known wishes.

A Competent Adult's Refusal to Consent

A patient's refusal to consent must be honored, even if death will likely result, unless a compelling state interest overrides the patient's refusal. In other words, the personal right of self-determination normally trumps society's interest in preserving life. A provider would incur civil and possibly criminal liability for rendering treatment in the face of a competent patient's refusal.

Refusal of Consent for Treatment of Minors

If the parent or guardian consents to treatment but a mature minor refuses, the physician and the hospital should not proceed; if mature minors are capable of giving consent, they are also capable of refusing and should be treated as adults. If the tables are turned—the mature minor consents, but the parents refuse—the minor's wishes should still trump the parents'.

Disabled Newborns

Infants are in the same legal position as other immature minors: The parents are authorized to consent or withhold consent to treatment as long as they are competent to do so and their actions do not constitute neglect of their child.

Legislation and Protocols on End-of-Life Issues - Brain Death

Legislatures responded by adopting some version of the Uniform Determination of Death Act (UDDA), which provides that "an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards."

Consent of a Spouse or Relative

Marriage or blood relationship alone does not entitle someone to consent to treatment on the patient's behalf.

Emancipated Minors

Most states have statutes that provide for the emancipation of minors from the "disability of age."

Consent in Medical Emergencies

No consent is required in a medical emergency

Age of Majority

Proper consent for the treatment of minors in cases of nonemergency requires that physicians and hospital personnel first determine the age of majority in their jurisdiction. Under early common law, the age of majority was 21 years but in most states is now 18.

POLST form (physician order for life-sustaining treatment)

Similar to Advance Directives, but only appropriate for individuals with a serious illness or advanced frailty near the end of life.

Misrepresentation of the Facts - Rogers v. Lumbermens Mutual Casualty Company

The doctor did not reveal the true nature of the proposed surgery (hysterectomy), and the patient thought she was consenting to another procedure (appendectomy).

Natanson v. Kline and Mitchell v. Robinson. pg 413

These cases were decided on the basis of what has come to be known as the reasonable-doctor rule—the physician must disclose all risks that a reasonable doctor would disclose under the circumstances.

Extending Surgery

When a surgeon encounters unanticipated conditions during surgery, whether the situation amounts to an emergency that justifies treatment beyond the scope of the patient's consent becomes a legal issue. The traditional rule is that unless a true emergency exists, the original surgery should be completed and the new condition should be addressed at a later time. As a result, however, the patient is subjected to a second procedure along with the risks inherent in the additional surgery.

clinical research

a departure from standard practice that is intended to test a hypothesis or develop new knowledge. Research is conducted to prove or disprove a hypothesis about a new course of treatment of potential benefit to a large number of patients; whether it may benefit the individual patient is not the primary consideration.

The Patient Self-Determination Act of 1991 (PSDA)

a federal law that requires facilities that receive federal funding to summarize the facility's policies regarding advance directives, advise patients of their right to make medical decisions, and include in the medical record any such documents the patient might have executed.

Incompetence

a legal status, not a medical diagnosis, but this determination is best made on the basis of a physician's professional judgment. The test is whether patients are capable of understanding their condition, the medical advice they have been given, and the consequences of refusing to consent.

general consent

a patient (or legal surrogate) is asked to sign as part of the registration process to grant the hospital permission to provide routine care and nursing services (e.g., to take the patient's vital signs, weight, medical history). Among other things, this form documents that various people (e.g., nurses, laboratory technicians) will be closely involved in the patient's treatment, the patient understands the nature of the basic care he is to receive, and the hospital does not guarantee a cure.

special consent form

a patient (or legal surrogate) is asked to sign whenever surgery or special diagnostic procedures are indicated. This form must be obtained from the consenting individual after the physician has clearly explained all the necessary information and has answered all of the patient's questions. In addition, this informed consent conversation must be held in a language the individual can understand. Nonphysicians must not conduct the informed consent session. Because the patient must fully understand the nature and extent of the proposed procedure, only a physician can properly communicate the information and answer the patient's questions. The physician must note the conversation in the medical record and describe the patient's level of understanding. In addition, the consent form should explain that unforeseen conditions sometimes arise and that additional or different procedures may be necessary. It should state that the patient is aware of this possibility and consents to such additional or different procedures as may be advisable in the physician's judgment if the situation prevents the medical personnel from obtaining a new consent.

Advance Directives

a written statement of a person's wishes regarding medical treatment, often including a living will, made to ensure those wishes are carried out should the person be unable to communicate them to a doctor.

Truman v. Thomas

a young woman (the patient) refused to have a recommended Pap test—a test for cervical cancer—apparently because she was unable to afford it. The physician had treated the patient over a six-year period for several routine conditions, rendered advice on family matters, and cared for her during her second pregnancy, but he did not specifically advise her of the risks involved in forgoing the Pap test. When a specialist eventually discovered a tumor, it was far too advanced for surgical removal and alternative forms of treatment proved unsuccessful. The patient died at age 30. The California Supreme Court held that the trial court erred by not instructing the jury that the physician had a duty to disclose all relevant and material information, including the risks of refusing recommended care.

Aid in Dying - "right to die"

active euthanasia is considered homicide However, for decades there has been pressure to allow physicians to ease suffering and assist terminally ill persons to hasten the dying process. Buck v. Bell (chapter 14)

innovative therapy

designed to enhance the well-being of the patient and is reasonably expected to be successful.

In re Application of the President and Directors of Georgetown College, Inc.,

despite a woman's refusal on religious grounds, the court ordered her to receive a blood transfusion for the sake of her seven-month-old child.

National POLST Paradigm

encourages patients and their healthcare professionals to talk candidly about what the patient wants and does not want when they are seriously ill or frail. Once they have had this conversation, informed decisions about planned treatments can be documented on a POLST form. (physician order for life-sustaining treatment)

implied consent

in the absence of a competent refusal, the law presumes that consent would be given. This rule applies to all patients, regardless of age

Infants and Young Minors

parental consent is clearly necessary (except in emergencies), and occasionally the question arises whether both parents must consent. Normally, the consent of either parent is sufficient, but if the parents are divorced or voluntarily separated, the consent of the custodial parent is preferred.

Consent Issues for Minors

physicians and hospital staff should normally make a reasonable effort to reach the parents (or the person standing in a parental relationship) if they have an opportunity to do so. If they decide to treat the minor without the parents' consent, the medical emergency should be documented and supported by professional consultation.

Informed Refusal

refusing medical treatment after being fully informed of the benefits and the severity of need for procedure.

Lack of Information About Consequences

the concept that the patient is entitled to know the inevitable consequences of the contemplated surgery.

Corn v. French

the doctor-patient relationship dictates, at a minimum, full disclosure of the nature of the diagnosed condition, all significant facts concerning the proposed surgery, and an explanation of the probable risks involved.

Lack of Information About Risks

the extent of the physician's duty to disclose the risks of the proposed treatment.

Bang v. Charles T. Miller Hospital

the patient expressly consented to a transurethral resection of the prostate, but he was not told that because of the particular circumstances—including his age and the possibility of infection—this professionally acceptable surgical technique would likely render him sterile. It did, and the surgeon was held liable for lack of informed consent.

Quinlan and Cruzan

the patient was clearly alive but was in a persistent coma (or even a state of seeming wakefulness) but subsisted on artificial means of life support. Legislatures enacted "natural death" acts and "living will" statutes aimed at allowing terminally ill patients to die with dignity.

living will

to instruct their physician to withhold or withdraw certain life-sustaining procedures in the event of a terminal illness.