When Is Informed Consent Not Required?

By Johnson, Lee J. | Medical Economics, December 25, 2011 | Go to article overview

When Is Informed Consent Not Required?


Johnson, Lee J., Medical Economics


A family is in a major motor vehicle accident They are all Jehovah's Witnesses, a religious group whose members will not accept whole blood, red and white cell, platelet or blood plasma transfusions. The husband is conscious, the wife is unconscious and close to death, an adult child agrees to get blood, a minor child is in urgent need of a blood transfusion, the grandmother is incapacitated, and the uncle is mentally ill. The husband refuses blood for himself and everyone else.

Who gets blood: the husband; the wife; the adult child, who changes her mind at the last minute and says she wants the blood; the minor child; the incapacitated grandmother; the mentally ill uncle; everyone but the husband; or none of them?

* Capacitated adult. In the seminal case of Schloendorff vs. The Society of New York Hospital, Justice Benjamin Cordozo wrote, "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 the patient's consent commits an assault" In modern medicine, consent is the crucial element. Most states have a statute that codifies this basic principle and mandates informed consent for certain procedures.

In general, the only person or entity capable of giving consent is a patient with capacity, a legal guardian of a minor or incapacitated person, or a court of competent jurisdiction. Legally, capacity means the ability to understand a physician's discussion of the risks, benefits, and alternatives to the recommended treatment The father has capacity and therefore has a legal right to refuse blood.

If your patient is a member of the Jehovah's Witnesses, it is necessary to explore whether autologous blood or any blood substitutes would be acceptable to him or her.

Nonetheless, you are exposed to some malpractice risk in a situation such as this and one must weigh the liabilities. If treatment is not rendered and a patient dies, lawsuits may claim wrongful death on behalf of the heirs and malpractice on behalf of the patient If treatment is rendered over a patient's objection, lawsuits can claim lack of informed consent When evaluating the damages attendant to these risks, it is obvious that the claim of lack of informed consent carries less damages than the lawsuit for wrongful death and malpractice.

Emergency department physicians aware of this dilemma have been known to avoid consent discussions with patients and wait to render treatment once it becomes an emergency.

* Unconscious adult in need of emergency care. Most states exempt physicians from the informed consent requirement in emergencies. An emergency can be defined as the need for immediate care when an attempt to secure consent would cause a delay and the delay could jeopardize a patient's life and health. In that case, you can go ahead with treatment regardless of consent.

Document the emergency in the patient's records, reflecting the language of the law in your state as closely as possible. For your state's law, check with your local medical society or malpractice carrier.

* Adult child. "Adult years" in the Schloendorff case refers to the age of majority. In most states, the age of majority is 18 years or older.

Any patient giving consent can change his or her mind. If time permits, repeat the conversation a few times at intervals to make sure the patient understands the situation and has actually given consent.

* Minor child. A parent or legal guardian can consent for a minor. If the minor has two parents, either one can consent. If the parents are divorced, one of the parents may have legal guardianship. If a child is orphaned, a relative may have assumed guardianship, or a court may have been appointed guardian. If a child is institutionalized, the institution may have assumed guardianship.

If a parent refuses treatment that is deemed urgent the social services department of the state may step in and give consent Parens patriae means that the state can take the role of parent for a person who is not otherwise protected, and the state can act in what it deems to be that person's best interest. …

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