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Legally Mandated Treatment

A court with proper jurisdiction may appoint a guardian to consent for a patient, or a court may issue an order for treatment under the authority of the public health laws. (See Chapter 20.) Medical treatment mandated under the public health laws poses a peculiar informed consent problem. The patient cannot refuse the treatment but is probably entitled to be informed about the nature of the treatment. This anomalous situation arises because a legal action for failure of informed consent requires the patient to prove that he or she would have refused the treatment if he or she had been properly informed. Since refusal is not an option, the legal action would fail. Conversely, it is repugnant to our sense of freedom to force treatment on a person without at least explaining what is being done and why.

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