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Medical Care Law

Chapter 9 - Consent To Medical Treatment

Highlights

Informed consent is the core principle of modern medical practice.

In some very limited circumstances, care can be provided without consent.

Health care practitioners must disclose conflicts of interest that might affect their clinical judgment.

There are special laws governing consent for minors and incompetents.

Patients have the right to refuse medical care, even when it means they will die.

Patients do not have a right to improper care or assisted suicide.

Introduction

Battery-No Consent

Exceptions To The Requirement Of Consent

The Emergency Exception

When Does the Emergency Exception Apply?

Children in the Emergency Room

Refusal of Care

Legally Mandated Treatment

The Therapeutic Exception

Informed Consent

Social Trends behind Informed Consent

Technology-Oriented Medicine

The Demise of Paternalism

Changing Values

Legal Standards for Informed Consent

Who Must Get Consent?

The Community Standard

Fraud in Consent

The Uncertainty of the Community Standard

Reasonable-Person Standard

Alternative Treatments

Statutory Disclosure Standards

Fraud

The Commonsense Approach

Knowable Risks

Unknowable Risks

Voluntariness

Public Policy

Medically Unnecessary Procedures

Duty to Inform of HIV

Professional Standard

Reasonable-Patient Standard

The Medical Value of Informed Consent

The Patient's Expectations

Conflicts Of Interest And Informed Consent

Financial Conflicts of Interest

Treating Family Members

Hospitals

Laboratories

Sexual Relationships with Patients

Consent For Minors

Documenting Who Can Consent for Your Patients

Special Circumstances

Guardians

Conflict between Parents

Conflicts between Parents and Children

Statutory Right To Treat Minors

Emancipated Minors

Interests of the Child versus the Parents

Religious Objections to Medical Care

Specific Types of Care

Consent For Medical Research

International Codes

The Nuremberg Code

World Medical Association

Consent under the International Codes

HHS Regulations on Protecting Human Subjects

General Requirements for Informed Consent22

Documenting Consent

The Form of the Documentation

Blanket Consent Forms

Treatment-Specific Consent Forms

Patient-Specific Consent Forms

Non-English Speakers

Illiterate Patients

Documenting the Oral Consent

Proxy Consent

Power of Attorney To Consent to Medical Care

Conflicts of Interest

Limitations

Guardianships

Establishing the Authority of a Guardian

Emergency Guardianships

Minors

Adults

The Interim until the Judge Rules

Refusal Of Care And Termination Of Life Support

Who Are the Stakeholders?

Patients' Interests

Physicians' Interests

Hospitals

Families

Society's Interests

The Cruzan Case

The Missouri Supreme Court Ruling

The U.S. Supreme Court's Ruling

The Persistent Vegetative State

Living with Cruzan

Formalizing the Patient's Wishes

The Duty To Counsel

Complying with a Patient's Refusal of Care

The Role of Courts

Following the Patient's Wishes

Judicial Intervention

The Simple Cases

Living Wills in the Emergency Room

The Impact of Cruzan

The Drawbacks of Substituted Consent

The Problem of Relatives

Assisted Suicide

History of Suicide Law

Physician-Assisted Suicide as a Constitutional Right

Right to Pain Relief

References

Suggested Readings

General Consent Issues

Impaired or Mentally Ill Patients

Research

Exhibit 9-1 World Medical Association Recommendations For Clinical Research

I. Basic Principles

II. Clinical Research Combined with Professional Care

III. Nontherapeutic Clinical Research

 

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