LEGAL ISSUES
In general, the patient or a substituted decision maker should know:
■ Thenature of the procedurebeing proposed
■ Theexpected outcome
■ Therisksof the proposed procedure
■ Thenatural history, eg, what may happen if the procedure is not attempted
■ Whatalternativesexist
The law contains two tests that address how much detail to present with these items:
- The reasonable physician standard.
The first test courts used was to ask was: What would a reasonable physician
tell a patient? This professional standard is like a “standard of care” analysis
for negligence, requiring expert testimony. - The reasonable patient standard.
Many states now ask juries: “What would a reasonable patient want to know
before undergoing the procedure?” Predictably, this shift has meant more liti-
gation and initially left providers guessing or overreacting.
When a patient cannot consent, do not think that consent is no longer neces-
sary. Instead, think that consent is not possible. Then, in situations of emer-
gency or waiver, for example, you will know that you have to document the
reasons obtaining consent was not possible.
The signed form or the chart note is not informed consent. It is a representa-
tion of what information was communicated. The documentation should
include the essential characteristics of an informed consent.
Caution dictates that documentation include complete lists of risks and alterna-
tives discussed, but this is impractical. In obtaining informed consent always
include risks of death, permanent limb and organ impairment, all serious and
severe possibilities, and temporary minor adverse results that occur >5% of the
time. Precise means of injury and causation do not need to be disclosed in detail.
Most forms require the signature of a witness. If you want the witness to be
able to testify as to what was said in the informed consent session, that person
has to be present throughout the conversation. More commonly, the witness
is only confirming that the patient signed the document, and has to be pre-
sent only for the signing.
THEEMERGENCYEXCEPTIONDOCTRINE
In extreme situations, emergency physicians may treat the patient without
consentonly if all of the threefollowing conditions are met:
■ The patient is unable to express his or her wishes.
■ The patient has a condition that demands immediateattention.
■ No family or other substitute decision maker is immediately available to
consent.
The nurse objects to getting Dick’s consent for the procedure. “He’ll
freak out and try to leave.” Can you skip informing Fred for his own
good?
No.A signed form can be a
manifestation of, but not a
substitute for, actual consent.The Emergency Exception is
nota blanket covering all ED
patients. Do not presume this
exception applies unless the
patient cannot communicate
and the treatment must take
placeimmediately.