Legally Mandated Treatment
There are three situations when persons must submit to medical care or testing without their permission, outside of the emergency situation. The first are patients who are have been judged legally incompetent and have had a guardian appointed by the courts or who have been involuntarily confined in a mental institution. Whereas such patients do not give up all their rights, the guardian may consent to care for them and may even require them to submit to care that they have refused. [In re Conservatorship of Foster, 547 N.W.2d 81 (Minn. 1996)]
The second situation involves public health orders. 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. [ Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973) ] The third situation is the testing of prisoners in the custody of law enforcement officials, and persons who are having blood drawn or other medical samples taken pursuant to a search warrant. In both of these situations, the courts or the legislature have the right to force the subject to be tested or submit to the treatment. Many medical care practitioners are uncomfortable participating in involuntary treatment, however, because of the consent issues.
Medical treatment mandated under the criminal or 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.
Medical care practitioners in emergency rooms should determine who is authorized in their jurisdiction to bring in people for involuntary treatment and testing to ensure that any requests are proper. The circumstances of the care should be carefully documented in the encounter record. This should include the names and badge numbers of the law enforcement officials, the stated reason for the medical care, and a copy of the search warrant, if one is being used.