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Physicians generally do not have a duty to treat someone with whom a professional relationship does not exist. This freedom does not extend to hospitals, which have a duty to render reasonable emergency care to presenting patients. As codified under the Emergency Medical Treatment and Active Labor Act (EMTALA), hospitals cannot refuse to perform medical screening examinations and stabilization of patients. Thus physicians staffing hospital emergency departments (EDs) have a duty to provide care to all presenting patients. But not every ED patient must consent to the treatment offered. When patients refuse care, it complicates ED operations and creates confusion among staff. Though seemingly simple, even experienced ED personnel find various consent issues complex, especially when they deviate from the routine patient visit. Thus, ED staff and patients are best served when managers become more comfortable with various consent-related scenarios in emergency care. This chapter addresses the legal principles of consent, refusal of consent, and provides some practical considerations in often difficult consent-related situations.1-2

General Concept of Consent

Obtaining patient permission for medical treatment, referred to as consent, is important for health professionals to understand. It can be viewed as a balance between providing medical care and the American legal expectation to ensure individual freedoms. In the United States, healthcare system patients and physicians have basic rights and responsibilities in the contractual relationship they establish when seeking and providing care. Consent introduces patient and medical professional responsibility, in which the patient grants permission for the medical professional to render responsible care. Physicians then establish a fiduciary relationship with patients, bound by good faith and trust, to provide advice and services while doing what is best for the patient.

The patients will decide to provide or withhold consent based on what is medically “right” for their health. Patients must accept responsibility for participating in their health maintenance by complying with their health providers healthcare recommendations and being responsible for associated costs of care. Thus the patients “consent” to participate in their healthcare, and to be responsible for services provided. In doing so, this helps protect the physician from later being accused of inappropriate touching (battery) of the patient, when touching by necessity occurs during healthcare. Providing consent to care helps establish a contractual relationship between physicians and patients.3,4

Express and Implied Consent

There are 2 major types of consent, express and implied. Express consent is exemplified in the vast majority of ED visits when patients give health professionals explicit permission to provide care. This typically occurs when a patient, arriving in an ED “asking for help,” expresses their desire to have the ED provide care even prior to any written consent being signed. This consent is memorialized in the “front end” ED documents routinely signed by patients during the registration process in the form of a general consent to treatment.

There is also consideration given ...

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