Understanding Informed Consent
In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain the patient’s “informed consent.” Although the specific definition of informed consent may vary from state to state, it means essentially that the patient has made a knowing decision about a medical treatment or procedure after a doctor or other health care professional discloses all the information a reasonably prudent medical provider would give to a patient regarding the risks involved in the proposed treatment or procedure. If the health care provider fails to obtain informed consent, the patient may have a legal claim for damages. An experienced medical malpractice attorney can help you determine whether you have a claim and represent your interests throughout the legal process.
The concept of informed consent is based on the principle that a patient has the right to prevent unauthorized contact with his or her person and, thus, a physician has a duty to disclose information to the patient so that he or she can make a reasoned decision regarding treatment, based on an understanding of the treatment to be provided. In certain situations, informed consent is an absolute necessity. For example, in medical trials or experiments that receive federal funding, informed consent must be obtained from any human participant or subject.
How to ensure valid consent
There are a number of things that the health care provider can do to ensure that the patient’s consent is valid:
- The actual person who will be performing the procedure should obtain the consent and that provider should have a full understanding of the patient’s medical history
- The doctor should ensure that the patient is legally and mentally capable of giving consent
- The doctor or hospital should not coerce the patient into giving consent
- The patient must consent to a specific procedure, and generally, the health care provider cannot go further than the scope of that procedure
- The health care provider must disclose sufficient information to the patient, such as the nature and purpose of the procedure, the probable risks and benefits, alternative treatments and the risks and benefits thereof, unusual but serious risks, such as death and the consequences of refusing the treatment
- The patient must be given an opportunity to ask questions and think about the information
Types of consent: express and implied
Informed consent may be either “express” or “implied.” Express consent is given in writing or orally. If a patient’s consent is written, it should include the name of the health care professional who discussed the proposed treatment with the patient, the name of the health care provider who is to perform the procedure and the date, time and location where the consent form was signed.
Consent not given by a patient in writing or orally, but understood from the circumstances surrounding the procedure or treatment at issue is known as implied consent. Consent may be implied when, for instance, a patient presents him or herself for a relatively simple, non-invasive procedure. Consent is also usually implied for necessary procedures a surgeon might perform in the course of a surgical procedure to which the patient did consent.
Exceptions to the requirement of obtaining valid consent
Emergency situations. In emergency situations, there is not always time to obtain a patient’s informed consent, or the patient may be unconscious and unable to communicate. If an emergency involves risk to the patient’s life or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment when faced with a life-threatening event.
Risk of significant emotional or physical harm. Consent may not be required if the patient might suffer significant emotional or physical harm if they are given troubling information.
Compulsory tests. Consent is not required in situations where a patient must submit to a test or treatment; for example, in situations of mental health problems or communicable disease.
Obtaining consent from incompetent individuals and minors
When a competent adult seeks medical treatment, the process of obtaining informed consent may seem relatively easy. However, in situations where mentally disabled or impaired individuals or children need treatment, the ability to obtain informed consent becomes more difficult. In these situations, serious questions arise concerning who is able to give informed consent for those individuals.
In most cases, a mentally disabled person has an appointed guardian authorized to make medical decisions and give informed consent for that individual. Medical providers need to make sure that when they obtain informed consent for incompetent individuals, they have obtained it from the correct person or persons.
In most situations, parents can give informed consent for treatment for their minor children. However, some states allow young adults under eighteen to play a more active role in their medical care and treatment, including the process of informed consent. Not every teenager is capable, however, of making informed consent decisions under these laws. Instead, most states focus on “mature minors” capable of understanding the nature and consequences of treatment. In those states, such young adults may be able to provide consent without consulting with their parents. For example, some states have passed specific laws that allow for minors to consent, without parental knowledge or approval, to health care treatments related to substance abuse, mental health and sexual activity.
Contact a medical malpractice lawyer
Patients are entitled to complete information about treatments or procedures they will undergo. Failure to provide the information can subject the health care providers to legal liability. If you think you may have a claim based on the lack of informed consent, contact an experienced medical malpractice attorney at once.
Medical Malpractice Resource Links
The NPSF website features information about patient safety.
Provides information and links about patient safety, tips for patients and other general health information.
Information about the delivery of safe, high-quality patient care, provided by Joint Commission International.
A chart summarizing state medical malpractice laws, provided by the National Conference of State Legislatures.
Medical malpractice news provided by the American Association for Justice.
Up-to-date medical malpractice news and litigation news articles, including news about lawsuits, legislation, compensation claims, pharmaceutical company disputes and more.
Information about medical malpractice and insurance.
Information and resources about tort law provided by the Legal Information Institute (LII) at the Cornell Law School.
Information and resources about malpractice provided by the Legal Information Institute (LII) at the Cornell Law School.