++
This chapter provides general information about important ED
issues with legal ramifications: informed consent, treatment of
minors, privacy and confidentiality, Emergency Medical Transfer
in Active Labor Act (EMTALA), risk management, death certificates,
newborns left in the ED, translation services, duty to third parties,
telephone advice, and extension of care outside the ED.
++
This section reviews the concept of informed consent, capacity,
exceptions to informed consent, and the informed refusal of care.
++
Every patient–physician interaction involves decision
making that directly affects the patient and that are subject to
numerous barriers and constraints.1 In the 1950s,
case law in the U.S. established the concept of “informed
consent.”2 Informed consent is the legal
standard under which physicians educate patients (those who have
capacity to make medical decisions or their legal caretakers) about
proposed treatments and alternatives. Informed consent allows the
patient to make a decision consistent with personal values.3,4 The
desirability of informed consent is based on the belief that it
fosters the twin concepts of patient well-being and autonomy.5 Informed
consent also provides a legal basis for autonomy.6
++
Physicians should act in their patients’ best interests
while preserving autonomy whenever possible.5 The
American College of Emergency Physicians Code of Ethics7 recognizes
this dual obligation in stating that emergency physicians “serve
the best interest of their patients by treating or preventing disease
or injury and by informing patients about their conditions, and
acting in the best interests of their patients.” The
code of ethics goes on to say “Adult patients with
decision-making capacity have a right to and physicians the concomitant
duty to respect, their preferences regarding their own health care.
This right is grounded in the legal doctrine of informed consent.” The
concepts of patient capacity and informed consent, and their exceptions,
should be integrated into daily ED practice.
+++
Basic Elements
of Informed Consent
++
Most patients arriving at the ED sign a general consent for treatment. General
consent for treatment is generally understood to cover history taking,
standard examinations, and basic procedures such as venipuncture
and blood analysis. General consent forms do not provide consent for
more detailed, risky, or invasive procedures.5,8
++
Informed consent requires two conditions: that the patient possesses
decision-making capacity, and that the patient can make a voluntary
choice free of undue influence. The process of informed consent
starts with the delivery of information to the patient by the provider.
The patient must then reach a decision and authorize the procedure
or treatment.4 Each part of the process is considered
individually.
++
Decision-making capacity (hereafter called “capacity”) is
the ability of the patient to make informed medical decisions. It
is the provider’s task to determine the patient’s
capacity.9,10
++
The definition of capacity varies among jurisdictions, but, in
general, ...