Informed Consent and Unauthorized Treatment

Do I need this surgery now, or can it wait? Which medicine is right for me? We trust our doctors to give us the right information. We also trust their expertise, as they help us make the most effective decisions about our own wellbeing.

But how do we know if we're getting enough or all of the right information? How do we know if we really are making informed medical decisions? What happens if we get treatment without knowing the risks?

This article is a quick introduction to what is known as "informed consent" and the medical malpractice cases that can arise from unauthorized treatment.

Informed Consent

Virtually all states have recognized, either by legislation or in common law, the right to receive information about one's medical condition, treatment choices, risks associated with treatments, and prognosis.

By law, the information must be in plain language that you can easily understand. It must also, by law, be comprehensive enough that it allows you to make an "informed" decision about your healthcare. If you have received this information, any consent you give to treatment will be presumed to be "informed consent."

The informed consent process isn't only an ethical obligation for doctors. It's also a legal one. State laws often take a patient-centered approach. Generally speaking, a doctor (or one of a doctor's representatives) is required to discuss the following with you prior to providing any kind of treatment:

• Your diagnosis
• The nature of the recommended treatment
• Any risks associated with the treatment
• Alternative forms of treatment
• The risks associated with those alternatives
• The consequences of taking no action at all

Keep in mind that many hospitals, doctor's offices, and treatment centers require their patients to sign informed consent forms. In that way, proper record of consent is kept.

Special Cases: Competency

To give informed consent, a patient must be competent. Under most circumstances, adults are presumed to be competent. However, this presumption can be challenged in cases of mental illness or other impairments. Minors, unlike adults, are generally not presumed to be competent. As a result, they are unable to give consent to medical treatment and procedures. In these cases, the parent or guardian of the child must give consent on the minor's behalf.

Under emergency circumstances, however, the competency standards can be different. If a person who would automatically be considered competent under non-emergency circumstances cannot be considered competent during an emergency, the competency requirement changes.

For example, if someone is knocked unconscious and requires life-saving medical care during that state of unconsciousness, healthcare providers must instead consider whether a reasonable patient would deny medical attention if such a patient were in the same circumstances, were actually competent, and could actually give consent. This also extends to circumstances where providing care to a person will prevent permanent disabilities, and that person cannot consent when otherwise they normally automatically would be considered competent. Additionally, if the doctor is aware that a patient would not consent to a specific treatment, the doctor cannot abuse this exception because it would save the patient's life.

Unauthorized Treatment

If a doctor fails to obtain informed consent for non-emergency treatment, they may be charged with a civil offense like gross negligence and/or a criminal offense. Charges could include battery or gross negligence.

In a civil suit, the patient would have to show two elements, and medical treatment could be unauthorized because the doctor didn't fully explain either the procedure or the risks associated with the procedure. The two elements are:

1. The patient must show that the doctor performed the treatment or procedure without their informed consent, and
2. The patient has to show that, had they known about the risks of the procedure, they would've decided not to undergo it and thereby not sustained the injury.

Find Out if You Have a Valid Malpractice Claim

Second-guessing a doctor's behavior can cause serious anxiety, especially when it comes to complicated legal concepts like informed consent and negligence. If you feel as though your doctor has wronged you, consider contacting a medical malpractice attorney. They can help you make informed decisions about how to handle your situation.