Published by at April 13, 2022 CHAPTER13 Patient Consent © nito/Shutterstock [N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person. —Union Pacific Ry. Co. v. Botsford Learning Objectives The reader, upon completion of this chapter, will be able to: • Explain the difference between consent and informed consent. • Discuss the difference between verbal, written, and implied consent. • Describe the role of the patient, physician, nurse, and hospital in informed consent. • Describe the theories under which the validity of consent might be proven. • Explain how consent differs among competent patients, minors, guardians, and incompetent patients. • Discuss under what circumstances a patient might refuse treatment. • Explain the available defenses for defendants as it relates to informed consent. INTRODUCTION Consent, in the healthcare setting, is the voluntary agreement by a person who possesses sufficient mental capacity to make an intelligent choice to allow a medical procedure and/or treatment proposed by another to be performed on himself or herself. Consent changes a touching that otherwise would be nonconsensual to one that is consensual. Consent can be either express or implied. • Express consent can take the form of a verbal agreement, or it can be accomplished through the execution of a written document authorizing medical care. • Implied consent is determined by some act or silence, which raises a presumption that consent has been authorized. Consent must be obtained from the patient, or from a person authorized to consent on the patient’s behalf, before any medical procedure can be performed. Every individual has a right to refuse to authorize a touching. Touching of another without authorization to do so could be considered a battery. Not every touching results in a battery. When a person voluntarily enters a situation in which a reasonably prudent person would anticipate a touching (e.g., riding in an elevator or rushing through a crowded subway, emergency department), consent is implied. Consent is not required for the normal, routine, everyday touching and bumping that occurs in life. In the process of caring for patients, it is inevitable that they will be touched. Most touching in the healthcare setting is considered routine. Typical routine touching includes bathing, administering medications, dressing changes, and so forth. This chapter reviews the many issues surrounding consent. 13.1 INFORMED CONSENT Informed consent is a legal doctrine that provides that a patient has the right to know the potential risks, benefits, and alternatives of a proposed procedure. Canterbury v. Spence, in 1972, set the “reasonable man” standard, which required informed consent for treatment. Patients must be informed of the risks, benefits, and alternatives associated with recommended treatments. Where there are two or more medically acceptable treatment options, the competent patient has the absolute right to know about and select from the available treatment options after being informed of the risks, benefits, and alternatives of each. The informed consent doctrine provides that a physician has a legal, ethical, and moral duty to respect patient autonomy and to provide only such medical care as authorized by the patient. An authorization from a patient who does not understand to what he or she is consenting is not effective consent. The right to be free from unwanted medical treatment has long been recognized by the courts. The right to control the integrity of one’s own body spawned the doctrine of informed consent. The U.S. Supreme Court, in Cruzan v. Director, Missouri Dep’t of Health, held that a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Verbal Consent Verbal consent, if proved, is as binding as written consent because there is, in general, no legal requirement that a patient’s consent be in writing. However, oral consent is more difficult to corroborate. Verbal Consent for Surgery Adequate […]