Consent is the voluntary permission granted from a patient from a medical professional to allow the permission to touch, examine, and perform medical services. If a medical provider were to touch or examine a patient without consent, they could be liable for battery. However, if a patient consents to a procedure, the physician CANNOT be held liable unless they fail to meet the accepted standard of care while performing the procedure.
Informed consent is when the patient agrees to a proposed plan of care, AFTER the advantages and risks of the treatment, treatment alternatives, potential outcomes, and the risks that may occur if treatment is refused, have been explained to and understood by the patient. Patients have the right to be told information that a “reasonable” person in the patient’s situation would want to know. This is referred to as the “Reasonable Person Standard”.
The process is much more than a patient simply signing a form. It is based on effective communication from a provider to a patient to explain complicated treatment plans in terms that a patient can understand. Informed consent allows the patient to understand the treatment and alternatives and allow them to make an informed decision regarding their care. The patient should sign a form acknowledging that they were informed about the aspects of the treatment and it’s alternatives as well as the treatments benefits and limits.
The explanation of a treatment or procedure alone does not constitute consent, as the patient must UNDERSTAND the explanation. After explaining the treatment plan and alternatives and the patient grants consent, the provider should ask the patient to summarize what they have been told to ensure that they truly understand. If possible, a family member or other responsible adult should be present and witness the process.
Within the physician/patient relationship, obtaining the informed consent of a patient is critical, as it is what holds the relationship together.
Because the practice of medicine is an evolving art and science, it is difficult to fully inform a patient about ALL the aspects of a treatment and all that can possibly go wrong. However, the provider must make a reasonable effort to do so, so that the patient can still make an informed decision.
A patient’s consent applies ONLY to the procedure that was explained to them and which they agreed to. For example, if a physician is performing surgery on a patient’s lung, and when doing so notices another condition that requires medical attention, if the surgeon were to correct the condition, they would still be liable for battery.
Medical providers are protected by law in emergency situations, in which a patient is not able to understand treatment information or provide consent.
Minors, the mentally incompetent, and those who do not understand English are deemed incapable of providing an informed consent.
Implied Consent
A medical provider should obtain written consent for treatment, regardless of its complexity, whenever possible. However, there are situations in which they can assume consent from a patient, such as when patients indicate by their behavior that they are accepting treatment or a procedure to be performed. This is referred to as “implied consent”. For example, if a patient schedules an appointment for a physical examination, it is implied that they consent the physician to touch them during the exam.
Exceptions to Consent
Exceptions are dependent on state law
* A physician does not have to inform a patient of risks that are commonly known
* In emergency situations, a provider can assume that informed consent would be granted if the emergency did not exist. However, the provider does NOT have the right to assume consent if the patient has refused consent in the past
* If a patient asks a physician NOT to disclose the risks of a treatment or procedure, the physician can respect the request and not disclose the risks
Refusal to Grant Consent
Competent adults, who are conscious and of sound mind, have a right to refuse any medical treatment or procedure. Regardless of the patient’s reasons, the refusal must be respected by medical providers, or they could be liable for battery.
If a patient refuses treatment, a provider should discuss alternatives and possibly encourage the patient to seek a second opinion. If the patient still refuses, a signed refusal to treat form should obtained from the patient and kept within their medical record. The document should state that the patient was informed of the possible consequences of refusing treatment.