0071643192.pdf

LEGAL ISSUES

THERAPEUTICPRIVILEGE

Another exception to the requirement for informed consent that appears in

both statutes and case law is therapeutic privilege. If the information and

discussion would be dangerous for the patient, they can be limited. This may

be helpful to other specialists who have established relationships with their

patients, but is not useful to emergency physicians.

Harry says, “I don’t wanna know. Just do it.” If you use this exception, docu-

ment witnessed offers to inform andthe patient’s mental ability to make

this choice.

WAIVER

Patients sometimes respond, “Whatever you say, doctor. I trust you.” Both case

law and statute recognize that a patient’s rejection of attempts to give informa-

tion is a defense to a suit. Witnessed notes in the chart and signed statements

from the patient can help prove the patient insisted on not knowing.

Tonight, Fred is obviously intoxicated, but he has a fever and seems more

impaired than his blood alcohol level indicates. Can he consent to a lumbar

puncture?

No, he lacks the mental capacity.

Capacity to Consent

The capacity to consent requires

■ Physical abilityto perceive and respond to information, and

■ Mental abilityto process, prioritize, and exercise judgment

Capacity is always contextual. So sometimes emergency physicians have to

assess—and document—a patient’s capacity. A patient need not be fully func-

tioning constantly, in every respect, to meet this standard. Lucid moments

may allow valid consent.

The law sometimes presumes that the individual’s status invalidates the capac-

ity to consent. The most common situations of this type involve minors and

the mentally incompetent.

States Can Make Exceptions Including:

■ Emancipated minors: Minors with dependent children, who are self-

supporting, or have court-approved independence from parents

■ Minors seeking medical attention for:

■ Reproductive issues

■ Communicable diseases

■ Drug abuse

Substituted Consent

Since the law often restricts who may consent for incapacitated patients, the family

member or other person who is most available may not be the right source.

The capacity to make a

decision requires that the

patient have the ability to

understand what is proposed

and the consequences of

accepting or rejecting the

intervention.