LEGAL ISSUES
If a court has declared the patient to be under guardianship including making
medical decisions, or if a patient prior to their infirmity has signed advance
directives and authorized a substitute decision maker, the person to ask for
consent is obvious.
Without a court order or advance directives, physicians sometimes look to the
“next-of-kin.” Many states have statutes prescribing which relative and in what
order. These statues may track the order of inheritance of those who die without
a will. They do not identify individuals within a class; for example, two siblings
may have equal authority. Lack of consensus among family and others who
claim to be empowered to consent or refuse is dangerous for the provider.
Refusal to Consent
Apart from emergency situations and other contexts where patients do not
have the capacity to decide, patients have the right to refuse treatment. The
patient’s values may be strange to the physician, but must be respected.
Unusual philosophical or religious beliefs do not necessarily mean that the
patient lacks capacity. However, a choice clearly inconsistent with a patient’s
lifelong value system does raise questions about capacity.
Refusal has to be informed, comparable to consent. In the context of an
informed consent counseling session, this will not be difficult. The provider is
already discussing the risks and alternatives, including refusing to do anything,
and the risks of those alternatives. Sensitivity to the legal issues and extra effort
are required when routine procedures are rejected informally.
Make the discussion an informed refusal session, to the extent the patient
will allow. Patients who don’t want to listen or who leave before any discus-
sion are still a potential problem, and their rejection of information should be
documented. Patients who are willing to listen should be warned of the risks
they are taking by refusing care or choosing a nonrecommended option.
In an emergency, patients still have the right to self-determination, but if they
lack the capacity to decide, you may proceed if there is no time to find a surro-
gate or obtain a court order. Remember to include the risks to the patient of
force, if they are physically resisting, in your considerations. As soon as you
can, write a note explaining why you proceeded without consent. Court orders
and surrogate identification will usually be sought after admission, often with
the help of the hospital’s legal counsel. Regardless of how you reach your
conclusion, if the court is not involved, documentation must support it.
Some people do not have the capacity to consent or refuse because of their status:
■ Minorsare the most obvious category, and usually a parent is available to
consent. Beware the pediatric patient who appears with some other rela-
tive or friend—you cannot assume that someone other than a parent has
the authority to approve care for the child.
■ Victims of infectious disease, for example, can have treatment forced on
them for public health reasons.
■ Incarcerated patients. Police may bring in a suspected drunken driver and
demand that blood be drawn for testing. In these situations, avoid establish-
ing a physician-patient relationship. If the person asks about other health
issues, make it clear that you are not taking care of him, and those questions
should be addressed to his own physician. If the person refuses the treatment
Treat refusal of recommended
care like informed consent.
Make it an “informed refusal.”People in another’s custody,
be it police, family, or nursing
home, are not automatically
unable to refuse treatment.