LEARNINGOBJECTIVE: Recognize the policies and procedures pertaining to consent for medical treatment, incident reports, and release of medical information.

There are few aspects of medical administration of treatment that do not have some legal implications. Every time a patient comes into contact with a facility or its staff members, either directly or indirectly, formally or informally, the potential for legal entanglement exists. Although the law has become more and more involved in the operation of hospitals, the exercise of common sense combined with a knowledge of those situations that require special care will protect the hospital and its staff from most difficulties.

This section addresses some of the situations that regularly arise and have legal consequences, including the policy and instructions that apply to those situations. Keep in mind that the law is an inexact science, subject to widely varying circumstances. The information in this chapter cannot substitute for the advice of an attorney. Hospital staff members are encouraged to consult with hospital or area Judge Advocate General (JAG) Corps officers on issues with which they are uncomfortable.

CONSENT REQUIREMENTS FOR MEDICAL TREATMENT

With limited exceptions, every person has the right not to be touched without his having first given permission. This right to be touched only when and in the manner authorized is the foundation of the requirement that consent must be obtained before medical treatment is initiated. Failure to obtain consent may result in the healthcare provider being responsible for an assault and battery upon the patient.

Informed Consent
While the term "consent" in the medical setting refers to a patient's expressed or implied agreement to submit to an examination or treatment, the doctrine of "informed consent" requires that the healthcare provider give the patient all the information necessary for a knowledgeable decision on the proposed procedure. When courts say that a patient's consent style="mso-spacerun: yes"> must be informed, they are saying that a patient's agreement to a medical procedure must be made with full awareness of the consequences of the agreement. If there is no such awareness, there has been no lawful consent.

The duty to inform and explain rests with the provider. THIS RESPONSIBILITY CANNOT BE DELEGATED.

The provider must describe the proposed procedure in lay terms so the patient understands the nature of what is proposed. The risks of the treatment must be explained. If there are any alternative medical options, they should be disclosed and discussed.

For common medical procedures that are considered simple and essentially risk free, a provider is not required to explain consequences that are generally understood to be remote. Adetermination of what is simple and common should be made from the perspective of appropriate medical standards. Where the harm that could result is serious or the risk or harm is high, the duty to disclose is greater.

Methods should be developed within each hospital department to acquaint patients with the benefits, risks, and alternatives to the proposed treatment. In some departments, prepared pamphlets or information sheets may be desirable. In others, oral communication may be the best method. Some states (e.g., Texas) have laws that are very specific about what is required.

Emergency Situations
Consent before treatment is not necessary when treatment appears to be immediately required to prevent deterioration or aggravation of a patient's condition, especially in life-threatening situations, and it is not possible to obtain a valid consent from the patient or a person authorized to consent for the patient. The existence and scope of the emergency should be adequately documented.

Who May Consent
The determination of who has authority to consent to medical treatment is based on an evaluation of the competency of the patient. If competent, usually the patient alone has the authority to consent. Competency refers to the ability to understand the nature and consequences of one's decisions. In the absence of contrary evidence, it may be assumed that the patient presenting for treatment is competent. If the patient is incompetent, either by reason of statutory incompetence (e.g., a minor) or by reason of a physical or mental impairment, the inquiry must turn to whoever has the legal capacity to consent on behalf of the patient. Parents and guardians will usually have the authority to consent for their minor child or children. In many states, though not all, a husband or wife may give consent for an incompetent spouse. It is the law of the state in which the hospital is located that controls the question of "substitute consent."

Forms of Consent
Consent for medical treatment should be obtained through an open discussion between the provider and patient during which the patient expressly agrees to the procedure. The consent should then be documented by having the patient sign any appropriate forms and by the provider noting any important details of the discussion in the medical record.

In certain limited circumstances, the consent of an individual to simple medical treatment may be implied from the circumstances. Implied consent arises by reasonable inference from the conduct of the patient or the individual authorized to consent for the patient. Reliance on this form of consent is strongly discouraged except in the most routine, risk-free examinations and procedures.

Witness to Consent
Any competent adult may witness the patient's consent. It is preferable that the witness be a staff member of the hospital who is not participating in the procedure. It is not advisable for a relative of the patient to act as a witness.

Duration of Consent
A consent is valid as long as there has been no material change in the circumstances between the date that consent was given and the date of the procedure. It is desirable that a new consent be obtained if there is a significant time lapse or if the patient has been discharged and readmitted due to postponement of the procedure.