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Informed Consent in-ˌfȯrmd-

By Charles Sabatino, JD

Before performing any invasive test or providing medical treatment, doctors must obtain permission from a competent patient in a manner that is informed and voluntary. The process is known as informed consent. People have the right to information about risks, benefits, and alternative treatments when making decisions about medical care and the freedom to choose.

If the patient is not capable of understanding these elements or making a decision, the doctor turns to the person named in a durable power of attorney for health care. If none exists, the doctor may turn to another authorized surrogate decision maker. If urgent or emergency care is needed and no authorized surrogate is immediately available, the doctrine of presumed consent applies: People are presumed to consent to any necessary emergency treatment.

Self-determination means that adults of sound mind have the right to decide what shall be done to their body. It is the foundation of the legal and ethical doctrine of informed consent. The process of informed consent should involve discussion between patients and doctors. Patients ask questions about their condition and treatment options, and doctors share facts and insights along with support and advice. Doctors should present the information in a way that is understandable to the patient and truly communicate the risks and benefits. The law requires that doctors take reasonable steps to communicate adequately with patients who do not speak English or who have other communication barriers. Informed consent is substantially achieved when patients understand

  • Their current medical status, including its likely course if no treatment is pursued

  • Potentially helpful treatments, including a description and explanation of potential risks and benefits

  • Usually the health care practitioner’s professional opinion as to the best alternative

  • Uncertainties associated with each of these elements

Typically, a document summarizing the discussion is signed by the patient for any major treatment decisions.

Refusing care

Along with the right of informed consent comes the right of informed refusal. People who have legal and clinical capacity may refuse any medical care. They may refuse care even if it is something almost everyone else would accept or something that is clearly life-saving. For example, a person having a severe heart attack can decide to leave the hospital even if that is likely to lead to death. Even if other people think the decision is wrong or irrational, the decision to refuse treatment cannot be used by itself as proof that the person is incapacitated. In many cases, people refuse treatment based on fear, misunderstanding, or lack of trust. But refusal may also be a product of depression, delirium, or other medical condition. A refusal of care should prompt the doctor to initiate further discussion to determine why the person refuses care and whether any concerns the person has about accepting care can be corrected. For example, a person who refuses care because they cannot afford it could be helped to apply for public benefits such as Medicaid or be told that a suitable payment plan could be arranged. A person’s competent refusal of treatment is not considered to be attempted suicide, nor is the doctor’s compliance with the person’s refusal legally considered doctor-assisted suicide. Rather, any subsequent death is legally considered to be a natural consequence of the disease process itself.

Sometimes, a person’s refusal of treatment may harm others. For example, people who refuse treatment of certain infectious diseases, such as tuberculosis, place other people at risk of infection. Also, people who refuse to allow treatment of others, such as a minor child or a dependent adult, may place that other person’s health at risk. In such cases, doctors often consult lawyers, judges, and experts in ethics.

* This is the Consumer Version. *