Spouses

Marriage or other kinship relations do not create agency relationships. One spouse may not consent to care for the other spouse. This is a particular problem for married women seeking medical care. The U.S. Supreme Court has ruled that a married women is solely able to consent to her own medical care. Her husband has no legal right to consent to her own medical care. Her husband has no legal right to consent to her care, or to veto her care. The law is very clear on this point, but the medical legal mythology is not. Many health care providers believe that a husband could sue them for rendering care to his wife without his consent. They are especially worried about rendering any care that would diminish the wife's child bearing potential without the husband's consent. There is absolutely no legal support for this position. (The few cases litigating the right of a husband to be consulted about his wife's care were decided against the husband.) This mistaken view can result in severe legal problems if it leads the health care provider to allow the husband to sign the consent-to-care forms when it is the wife who should sign them. In this situation, a form signed by the husband, but not the wife, would be strong evidence that the wife did not consent to the care. As noted earlier, this could result in liability for battery whether the care was successful or not.

The requirement that both husband and wife be required to consent to care is also legally unsound. If the hospital is a state institution, or if the health care providers work for the state, the requirement of the husband's consent is simply illegal. In private hospitals, the requirement of spousal consent is not per se illegal, but it can create liability problems. These problems usually arise when the husband wants to veto his wife's care or when the husband is absent and the health care provident refuses to render care without his consent. If the health care provider-patient relationship has been entered into, the health care provider will be liable if the woman is harmed by the withholding of needed care. The woman might also be able to sue the health care provider for invasion of privacy and breach of confidentiality for discussing her medical care with other (including her husband) without her permission. Spousal consent requirements, whether for the husband or for the wife, are an anachronism that can lead to serious legal difficulties.