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The law regarding informed consent has been evolving since the early part of the twentieth century. The foundation for informed consent is base on the now-famous quote from Justice Cardozo “Every human being of adult years and sound mind has the right to determine what shall be done with his own body”
Why is informed consent essential?
- To achieve the goal of providing patients with high-quality medical care
- Patients deserve to have their questions answered before submitting to any medical procedure
- Patients deserve to be given enough information to make an informed decision about whether to agree with the choices made by the Doctor
The law requires that Healthcare worker respect these choices. Failure to meet informed consent obligations may result I significant liability to the healthcare provider and the employer.
The law defined unwanted or unauthorized medical treatment as a battery. A battery occurs whenever one person intentionally touches another without permission. Theoretically, a claim for battery arises if the patient consents to a particular procedure and the physician goes beyond the scope of that consent. A battery also occurs if a physician or healthcare provider performs a different procedure for which he or she did not obtain consent. MedicalBattery- Example: Ear Surgery. Patient gives permission to surgeon to operate on left ear. While patient is under anesthetic, surgeon decides to operate on right ear. Right ear is made better. Result? Battery. Why? Cutting on someone’s ear without permission is battery, even if it helps them.
The most important exception to the informed consent rule pertains to emergency situations. Is the case of a medical emergency where the patient is unable to communicate with caregivers, lifesaving treatment ordinarily may be given with out the patient’s consent. The law implies consent in most emergency circumstances on the theory that if the patient were able or if a qualified legal representative were present, he or she would give consent.This is a consent implied by your actions. The very act of walking into a doctor’s office, or a hospital ER, or voluntarily submitting to treatment is a valid consent. If you go into a doctor’s office with a boil on your neck and do not object when he lances it, you have consented. A Mississippi mother sued her local school board, because her child developed a severe reaction to an inoculation that was given to the child at the school clinic. She complained the shot had been given without her consent. The court held that she had given her implied consent by allowing the child to be sent to the clinic.
The law allows for special circumstances, many states have laws that permit minors,whether emancipated or not, to consent to treatment for sexually transmitted diseases. In addition, many states give minors the authority to consent to birth control and other matters relating to pregnancy. A minor’s ability to consent varies from state to state. Some states require parental notification, such as in the case of abortion.
Patients admitted to mental health facilities have special rights regarding consent. A patient may not ordinarily be held and treated against his or her will unless careful attention is paid to complying with state and federal laws regarding involuntary commitment. It is a generally accepted principle of mental health law that even an involuntarily committed patient retains the limited ability to refuse certain types of medical care, such as (‘shock treatment”)
Considering the above mentioned information it is important to understand how informed consent applies to different situations, perhaps this knowledge will be useful in the future.
Reference source: http://eejlaw.com/m/Medical_Malpractice_Part_1.pdf