To obtain a legally effective
informed consent from a patient for a procedure the patient ought to be told in
terms that he understands:
- Diagnosis
- Procedure or Treatment
- Risks and Consequences
- Feasible Treatment Alternative
- No Treatment Outcome
The difference between ‘risk’ and
‘consequences’ is significant. A risk
is something that might happen, such as an infection. A consequence is something that will happen.
Informed Consent is not a
form. A form signed by the patient may
serve as evidence that his consent to the procedure was obtained, but valid
informed consent is a process in which the physician makes sure the patient
under stands the material facts he needs to make a sound decision whether or
not to accept the procedure. It is more
than prudent to chart informed consent rather than rely solely on an office
form. If a patient is reluctant to sign
a form but consents to the procedure then charting informed consent should be
adequate.
Do not use ‘Informed Consent’
when a patient insists on alternative medicine. Use ‘Assumption of Risk’ as discussed in a later post.
EXCEPTIONS
- Emergencies
- Unconscious or Incapacitated Patient
- Patient Waiver
- Therapeutic Privilege (addressed in Canterbury, Cobbs, and Bang cases in later posts.
PATIENT REFUSAL
If a patient must give his consent to a medical procedure
before it can be performed, it follows that a patient who is a competent adult
also has the right to refuse treatment.
Doing an invasive procedure that a competent adult has refused is a
battery, a tort for which the physician can be sued and which may not be
covered by his malpractice policy.
The Supreme Court case of Cruzan held, among other
things, that a competent adult has the right to refuse medical treatment
including artificial nutrition and hydration.
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