Chapter 303: Legal Issues in Emergency Medicine

INFORMED CONSENT

Informed consent is a requirement for providers to educate patients with the capacity enough to make medical decisions (or their surrogates) about proposed treatments and alternatives, to gain agreement or refusal, and to document that decision.^1,2 Informed consent fosters the twin concepts of patient well-being and autonomy. The American College of Emergency Physicians Code of Ethics³ recognizes the obligations, stating: Emergency physicians “serve the best interest of their patients by treating or preventing disease or injury and by informing patients about their condition.” It also states that: “Adult patients with decision-making capacity have a right to accept or refuse recommended health care, and physicians have a concomitant duty to respect their choices. This right is grounded in the moral principle of respect for patient autonomy and is expressed in the legal doctrine of informed consent.”³

ELEMENTS OF INFORMED CONSENT

Most patients arriving at an ED agree to and sign a general consent for treatment. This consent covers 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 testing or treatments.

Informed consent requires two elements: The patient must possess decision-making capacity, and the patient can make a voluntary choice free of undue influence. Informed consent begins with the delivery of information to the patient by the provider, using an understandable format. The patient must then reach a decision and authorize the procedure or treatment. Each part of the process is separate, albeit linked.

Patient Capacity

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 patient capacity.⁴ The definition of capacity varies among jurisdictions, but in general describes an individual’s ability to make a decision based on his or her values and comprehension of the likely consequences of that decision.^5-7 The American College of Physicians Ethics Manual describes decision-making capacity as “the ability to receive and express information and to make a choice consonant with that information and one’s values.”⁵ Competence, which is not the same as capacity, is a legal term indicating a ruling by a court that a person is able to manage his or her own affairs.⁸

Capacity requires the ability to receive information; to process and understand information; to deliberate about a decision; and to make, articulate, and defend choices. Generally, the physician assesses the patient abilities by taking a history from an alert patient absent barriers to communication. If needed, remove any barriers to communication due to language through translation, ideally by an impartial, in-person, medically trained translator.

Patients with altered mental status may not possess ability to receive or process information and thus lack capacity.^9,10 However, not all ...