Healthcare Law

Introduction

Informed consent for medical treatment is much easier to state than to apply. It's defined as "the voluntary agreement, by a patient, to medical care with full understanding of his or her condition, the nature of the proposed treatment, alternative treatments, risk that may be associated with treatment, and risk of no treatment at all" (Diaz, 2004, p. 181). The attainment of informed consent of minors can be very complicated due to the specific requirements, which often vary from state to state. Under US common law, parental or legal guardian consent generally is required for the medical treatment of minors. Medical personnel sometimes view the process of obtaining informed consent as an administrative burden and obstacle or impediment to providing quality medical care. Depending on how and under what circumstances a provider obtained consent for a minor, he or she may still be held liable for battery, negligence, and/or misconduct (Beauchamp, 1997, Kuther, 2003).

The purpose of this paper is to present a brief overview of the evolution and history of the informed consent doctrine in the U.S., followed by an explanation of the different aspects of informed consent for minors including exceptions to required consent, emergency medical care, adolescents care, and research.

History and Development of Informed Consent

History

In the American health care system, the issues of informed consent did not directly apply to medical care until the mid and latter part of the 20th century. Prior to this securing informed consent was not actually required. Informed consent came about due to the rulings and judgments from cases brought against physicians for negligence, battery, and any other negative medical outcome. In addition to its legal foundation, informed consent is also rooted in concerns about protecting a patient's autonomy (Faden, 1986, Lynn, 1983).

In 1914, in the case of Schlendorff v. Society of New York Hospitals, the New York Supreme Court established and said that adults have a right to determine what is done to their own body. The court also said that a surgeon who performs a procedure without consent, from the patient, commits an assault and is liable. In 1957, the term "informed consent" was first citied in the Salgo v. Leland Stanford Jr. University Board of Trustees case. The court found that physicians have a duty to disclose any facts needed by the patient to make an intelligent consent to treatment. In two separate 1960 cases, Natanso v. Kline and Mitchell v. Robinson, the court found that the physician also had the duty to disclose the risk involved in any treatment provided. This discloser makes informed consent possible by providing patients with information to base their decision on (Faden, 1986, Qualls, 1999).

The number of articles related to informed consent increased in the medical and legal literature during the 1960's through

1980's. In 1981, the Judicial Council of the AMA recognized informed consent. It said it was "a basic social policy necessary to enable patients to make their own choices, even if the physicians disagree (Beauchamp, 1997, p. 190). As time went on and more courts ruled in favor of patients, every case relied on previous judgments to show possible precedent. This produced relevant language that shaped the present day's informed consent laws. Some landmark cases also worth noting are Canterbury v. Spence, Cobbs v. Grant, and Wilkinson v. Vesy (Faden, 1986).

Ethics of Informed Consent

Throughout all mentioned cases, an ethical/moral sentiment was present. There is a moral responsibility on the part of the health care provider (physician) to recognize the autonomy of the patient. Informed consent respects a person's autonomy by giving them the freedom to choose. It respects a human's ability to exercise moral reasoning and to make moral choices (Kuther, 2003). Appelbaum (1987) writes, "the principles of autonomy primarily refer to the obligation of health-care professionals to respect the rights of patients to make their own decisions about their treatment - the core of the idea of informed consent" (p.23).

Elements and Types of Informed Consent

In order for informed consent to be valid, the process must incorporate four basic elements (1) discloser of all relevant information about the medical treatment the patient will need to make an informed decision, (2) comprehension of the information provided (3) voluntariness, the patient must consent freely without pressure or force due to coercion (4) competence which relates to a persons ability to make decisions (Qualls, 1999).

Informed consent is either expressed or implied. Expressed consent is given either orally or in writing. Implied consent is either presumed or inferred. In an emergency consent is presumed under the theory that delaying care to obtain consent would result in serious harm or death. Inferred consent is based on a person's action and his/her willingness to be treated (Miller, 2000).

Consent of Minors

As noted in the introduction section of this paper, only parents or legal guardians can provide informed consent for minors to receive medical treatment. The law assumes adult parents competent, able to make decisions for them selves, and will act in the best interest of their child. In most states, there is a doctrine of in loco parentis, which allows persons designated by parents, as caregivers, to give interim emergency consent (Tillett, 2005). Parental or legal guardian consent is usually required for minors because "minors are viewed as incompetent decision makers and state legislation is designed to protect minors from the consequences of poor decision" (Kuther, 2003, p.345). In most cases, the law considers children incompetent and dependent regardless of their maturity until they reach legal age of majority. Note that informed consent is "usually" required for minors and in "most" cases minors are seen as incompetent, meaning that there are exceptions. These exceptions involve state mandates (pregnancy related care, testing and treatment of STD's, and drug/alcohol abuse services), contraceptive and abortion services, and emergency medical care. Furthermore, situations where a minor may give independent informed include emancipated minors and a mature minor (Kuther, 2003, Tillett, 2005).

Exceptions to Informed Consent Requirements

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