Informed Consent and POA

Question 1

The United States Supreme Court has held that ___ and ___ adult patients have the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment

Answer 1

Competent, adult

Question 2

Competent and adult patients can

Answer 2

Decline care and consent to care

Question 3

What is consent?

Answer 3

Voluntary agreement by a person who possess sufficient mental capacity to make an intelligent choice to allow something proposed by another to be performed on himself or herself.

Question 4

What is a power of attorney (POA)?

Answer 4

A Legal document that allows someone else to make decisions for you

Can be financial and medical or often, both

Proactive, not a reactive step

Question 5

Is a POA permanent?

Answer 5

No - it can be changed

Question 6

POA general considerations?

Answer 6

Establish POA earlier than later

Appoint someone you really trust

Tell your family and friends ahead of time that you have one and who they are

Not required in the parental/child relationship

Question 6

What is informed consent?

Answer 6

It is a legal concept

Patients have the right to know the potential risks, benefits and alternatives of a proposed procedure…and the consequences of refusal

Of note: in 1973, Informed consent in the Caterbury v. Spence case set the reasonable man standard for requiring informed consent for treatment

Question 6

What is the physician/provider duty in relation to informed consent?

Answer 6

Informed consent is predicated on the duty of the provider to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it

Requires that a patient have a full understanding of what to which they have consented

Question 7

How to assess whether a patient has decision making capacity?

Answer 7

Overall: a patient “gives an informed consent” if:
1. One is competent to act
2. Receives a thorough disclosure
3. Comprehends the disclosure
4. Acts voluntarily
5. Consents to the intervention/treatment

In most cases, a patient is considered competent to make medical decisions regarding their care unless a court determines otherwise

Question 8

What preconditions should be considered to determine in/capacity of the patient’s decision-making capacity?

Answer 8

Does the patient have the competence to understand?
Does the patient have the competence to decide?
Does the patient have the voluntariness to decide?

If a patient is unable to make decisions by reason of age or incapacity, a patient-appointed decision maker may “substitute his or her judgment” on behalf of the patient: Health Care Agent

Question 9

What things must be noted in the patient’s chart if you deem the patient incapable of decision-making capacity?

Answer 9

The cause, the nature, the extent, probable duration of incapacity

Ex: patient comes to clinic intoxicated, some unexpected event happens during surgery while patient is under anesthesia, etc

Of note: before withholding treatment, a second provider must confirm and document the incapacity before any new decisions are acted upon by the health care agent

Question 10

What are the 3 elements of necessary information that is needed in the patient’s note to document adequacy of consent?

Answer 10

1. Disclosure of material information (ex: We discussed the diagnosis of ___. I discussed treatment options with the patient, including…..)
2. Recommendation of a plan (I either recommend or do not recommend x/y/z treatment option because of reason)
3. Understanding disclosure and recommendations

Tying in with #3 –> final elements of completing consent: decision in favor of or against plan and authorization of the chosen plan (ex: the patient understands and agrees with this plan; OR the patient voiced understanding and that they would like to first consider their options before making a treatment decision; OR the patient voiced undserstanding and has decided to forgo treatment options at this time in lieu of observation, etc)

Question 11

Who can authorize consent?

Answer 11

Competent adult patients

In the event of incapacity:
spousal consent (assumed for spouse if no POA or health care agent appointed), guardianship/health agents, parents, healthcare provider (x2)

Question 11

What are some types of proof of consent?

Answer 11

Oral, written (written preferred as it provides visible proof; oral consent can be hard to proved as it’s difficult to corroborate, but if proven true is as binding as written consent)

Question 12

What are some exceptions for authorizing consent in a competent adult?

Answer 12

Preserve life of the patient, prevent suicide, safeguard the integrity of the medical profession and protect innocent third parties.

Question 13

What is guardianship?

Answer 13

An individual who by law is invested with the power and charged with duty of taking care of a patient by protecting the patient’s rights and managing their estate

Can be temporary

Question 14

Courts uphold that minor consent is ___ and you must secure consent of a parent or guardian- although this shouldn’t delay emergent treatment

Answer 14

Ineffective

Question 15

When is minor consent not necessary?

Answer 15

The minor is married
The minor has a minor
The minor is emancipated
State law defines minor’s age of autonomy in sexual health (MN = age 14)

Question 16

If emergent treatment is required to preserve the life of a patient or prevent injury AND it is impossible to obtain consent of the patient or legal representative, consent is ___

Answer 16

Implied

EVERY effort should be made to obtain consent and if not: the record should reflect: the efforts to obtain consent,
the nature of the threat to life or health, it’s immediacy, and its magnitude

This is “privilege to proceed” because inaction at this time may cause greater injury and would be contrary to good medical practice

Question 17

What is implied consent?

Answer 17

Determined by some act or silence, raising a presumption that consent has been authorized

Presumed in emergency situations (ex: risk to life or limb)

Unconscious patients are presumed under law to approve treatment that appears to be necessary

Non-emergent situations- patient submits to procedure, implying consent without an explicit spoken or written expression of consent

Question 18

What are some common reasons that patients (competent adults) treatment?

Answer 18

Lack of confidence in provider
Disagreement with the opinion of the provider
Fear of the procedure
Doubt as to the value
Religious beliefs
Just becase

Question 19

Important point with failure to inform?

Answer 19

Liability may be imposed for nonconsensual touching of a patient who had refused, EVEN if that procedure improved health

(ex: patient’s chief complaint is a breast concern, nonconsensual initiation of a breast exam)