Understanding Informed Consent and Your Rights as a Patient

When medical care or treatment is provided, medical practitioners are required in many situations to obtain a patient's "informed consent." But what does this term mean? What can happen if proper informed consent is not given? This article explores the meaning of informed consent, the role of the doctor, your role as a patient, and instances where it may not be necessary or required.

Informed Consent Defined

Although the specific definition of informed consent may vary from state to state, it basically means that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.

The concept is based on the principle that a physician has a duty to disclose information to the patient so they can make a reasonable decision regarding treatment.

The Doctor's Role in Informed Consent

Physicians themselves, rather than a representative, nurse, or other related health care professional, are the best choice to speak to the patient about informed consent. In discussing the matter with the patient, the doctor should cover:

• The patient's diagnosis, if it is known;
• The nature and purpose of the proposed treatment or procedure;
• The benefits and risks of that proposed treatment or procedure;
• The alternatives to the proposed treatment or procedure;
• Alternatives should be discussed regardless of their cost and regardless of whether they will likely be covered by the patient's health insurance;
• The risks and benefits of alternative treatments or procedures;
• The risks and benefits of not receiving or undergoing any treatment or procedure;
• The patient, or the patient's legally authorized representative consenting to the treatment on the patient's behalf, must sign and date the informed consent documents;
• The patient or the patient's legally authorized representative must be given a copy of the informed consent documents once they are signed and dated, and a copy should be placed in the patient's file.

Note: A physician should also ensure that patients understand what they're hearing, rather than simply being told. In fact, some hospitals now require physicians to participate in courses on communication skills.

The Patient's Role in Informed Consent

Although a doctor is required to inform their patient about benefits, risks, and alternative treatments, patients must also play a part in the informed consent process. Patients must listen to the physician and should ask questions if they don't understand or would like more detailed information.

For example, you're a patient in a hospital being treated for a problem with your back. Your doctor comes into your room and says, "John, you've got a herniated nucleus pulposus. Let's do a discectomy and to do that we'll start you off with some sodium thiopental, then hit you with a strong general anesthetic and wheel you into the OR. We'll hope that while you're under the knife you don't have a myocardial infarction. Sound good?"

You should look your physician in the eye and say, "I have no idea what you just said so I won't say that plan sounds good. Explain it to me in detail and tell me exactly what all of those words mean."

When Informed Consent May Not Be Necessary

While being informed about your care and giving consent is usually in your best interests, it's not always feasible or advisable. For instance, doctors may need to perform a life-saving procedure whille you're unconscious and thus unable to give consent.

Situations Not Involving Medical Procedures or Treatment

Some procedures are so routine and non-invasive, that informed consent really isn't an issue. For example, although listening to a heartbeat through a stethoscope may be considered a "treatment" or "procedure" to some people (especially those who are uncomfortable in physician's offices), it's rare that a physician and patient would have a lengthy discussion about the benefits and risks of listening to a heartbeat using that device.

In other situations not involving medical treatments, informed consent is an absolute necessity.

For example, in any medical trials or experiments that receive federal funding, informed consent must be obtained from any human participant or subject. This requirement stems historically from the Nuremberg Trials that took place after World War II where the atrocities of Nazi medical experimentation on unwilling subjects came to light. Following the trials, the Nuremberg Code was drafted which emphasized the need for consent in any human medical experimentation.

Emergency Situations

In emergency situations, there's not always time to obtain a patient's informed consent, nor is it always possible when the patient is unconscious or unable to communicate.

For example, the federal Food and Drug Administration allows for the use of experimental drugs or devices in emergency situations without informed consent if the community at large knows that the research into the drug or device is going on, a special committee keeps track of the results, and provisions are in place so that the experimental use can be stopped immediately if need be.

Getting Consent From Minors and the Mentally Disabled

When a competent adult seeks medical treatment, the process of obtaining informed consent may seem relatively easy. However, in situations where mentally disabled individuals or children need treatment, the ability to obtain informed consent becomes more complicated.

Patients with Mental Disabilities

In most cases, a mentally disabled person has an appointed guardian authorized to make medical decisions -- i.e. provide informed consent -- for that individual. Medical providers need to make sure that when they obtain informed consent for incompetent individuals, they have obtained it from the right individual.

Patients Who are Minors

In most situations, parents can give informed consent for treatment for their minor children. Some states allow young adults under 18 to play a more active role in their medical care and treatment, including the process of informed consent. Not every teenager is capable, however, of making informed consent decisions under these laws. Instead, most states focus on "mature minors" sufficiently ready to understand the nature and consequences of treatment. In those states, such young adults may be able to provide consent without consulting with their parents.

For example, some states have passed specific laws that allow for minors to consent, without parental knowledge or approval, to health care treatments related to substance abuse, mental health, and sexual activity.

Concerned About Informed Consent and Your Rights? A Lawyer Can Help

While there are some limited exceptions, informed consent is not only in your best interests as a patient but it's also required by law in most situations. If you believe your rights with respect to consent have been violated or you have other concerns, you should consider reaching out to a health care attorney near you.