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The Emergency Exception

The emergency exception to the need for informed consent (or any consent) is based on the premise that a reasonable person would not want to be denied necessary medical care because he or she happened to be too incapacitated to consent to the treatment.

The legal strictures on the emergency exception are very limiting: the patient must be incompetent to consent and in need of treatment to save his or her life or to prevent permanent disability. This often involves children, who may be medically able to consent to treatment but are legally unable to consent because of their age. An example is the problem of the 14 year old who has broken an arm and is brought to the hospital by a neighbor. Neither the child nor the neighbor is legally able to consent to treatment. The physician may rely on the emergency exception to consent if immediate care is necessary to preserve the use of the child's arm.

The case law on the definition of an emergency is restrictive because the only cases that are brought to court involve bizarre facts, such as children being brought in for elective surgery without, or against, their parent's consent. If parents were suing a physician because he or she relieved their child's suffering, the issue would quickly shift from the physician's liability for malpractice to the parents' liability for child abuse and neglect. In general, it is better for the physician to be explaining to a jury why he or she helped someone rather than stand by and watch the child lose life or limb.

A rare abuse of the emergency exception involves patients who have refused to consent to specific medical care. The refusal may be based on religious beliefs, such as refusing blood transfusions, or on a personal decision, such as refusing intensive care. If the physician disagrees with such a decision, the time to fight the decision is when it is made. There is no legal justification for waiting until the patient is unconscious or for physically or chemically restraining a patient and then rendering care against the patient's consent. This would not constitute an emergency exception to the need for consent. On the contrary, it would constitute battery.

The major abuse of the emergency exception to the need for consent is its use as a justification for treating chronically ill patients who are incompetent to consent to medical care. The emergency exception is just that--an exception limited to emergencies. These may be in the emergency room, or they may involve patients in the hospital who have an unexpected event such as a cardiac arrest. The emergency exception does not apply to an incompetent patient in need of routine care. Chronically incompetent patients should have a legal guardian.

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