A cornerstone of medical ethics is the requirement that patients give informed consent to any treatment, and this is supported by U.S. laws guaranteeing that patients should be able to refuse treatment. However, laws on refusal of treatment only apply if the patient has the decision-making capacity necessary to refuse treatment. This creates no special difficulty in cases where a patient clearly lacks decision-making capacity (unconsciousness, very advanced dementia, a ruling declaring legal incompetence, etc.) and also would create no special difficulties in cases where there is sufficient time to allow a patient to regain decision-making capacity, contact surrogates, address advance directives, or if all else fails, consult with the courts. Of course, in any such cases, physicians should clearly document everything and ideally get a second opinion on a patient’s decision-making capacity.
However, in time-sensitive cases where a patient has compromised decision-making capacity I have not yet been able to locate clear laws or cases.
For example, suppose that a patient is brought in with a moderate injury that will get worse without treatment (perhaps a broken ankle). Then suppose that the patient refuses treatment for the injury and wishes to go home. Finally, suppose the patient is clearly quite drunk (or high, or has some other moderate incapacitation) and the physician does not believe that the patient appreciates the consequences of refusing treatment.
If a physician decided to provide treatment on the basis that the patient does not have the capacity to give an informed refusal of the treatment, is the physician exposing themselves to liability or other legal sanction?
Also, if the physician did not provide treatment, is the physician exposing themselves to liability on the grounds of not properly securing an informed refusal of treatment?
I think it more likely that the latter of the two concerns you raise would pose a problem for the physician. If the concept of doing that which a "reasonable and prudent person" would do still obtains in our legal system, then splinting the broken ankle against the patient's wishes would seem entirely defensible. It would probably be wise to get the second opinion of which you speak in order to have someone who can attest that the patient was non compos mentis when you splinted them. On the other hand, to not provide the treatment seems like, in this highly litigious culture, an invitation not only to lawsuits, but also to newspaper coverage which would tend to portray you as incompetent. You raise a good point. There needs to be a legal protocol for a health care professional to follow. As it stands it seems to leave you to make your own way based upon your own concept of what is prudent.
Informed consent in the United States is not a legal absolute required in all health and medical care circumstances. For example, in the case of an emergency and in the absence of an advance directive, the physician must act to save life. That said, not all cases seen in an emergency room are true emergencies (patients requesting refills of prescribed meds, urgent but no emergent decisions). In addition, even if an advance directive for a particular patient exists, it may not been written in such a way that the advance directive can be confidently acted upon.
Here are a set of references that may be useful to you regarding informed consent in areas where questions of informed consent arise in its application in medical and surgical settings in the United States arise: (1) orthopedics in acute care settings, (2) physicians in training, and (3) research on humans in the emergency room:
In clinical care:
1. Gould MT, Langworthy MJ, Santore R, Provencher MT. An analysis of orthopaedic liability in the acute care setting.Clin Orthop Relat Res. 2003 Feb;(407):59-66.
2. Pallin DJ, Harris R, Johnson CI, Giraldez E. Informed consent in thIs consent "informed" when patients receive care from medical trainees? Acad Emerg Med. 2008 Dec;15(12):1304-8.
In research on humans:
1. Largent EA, Wendler D, Emanuel E, Miller FG. Is emergency research without initial consent justified?: the consent substitute model. Arch Intern Med. 2010 Apr 26;170(8):668-74.
Dennis
Dennis Mazur
You're talking about the doctrine of substituted judgement, wherein the physician makes the decision to treat based on the belief that if the patient had capacity, this is the decision that he or she would make. There are plenty of decisions on this point, you should look in your own jurisdiction if you want some legal support for something you have done. As to your second question, is the physician liable? If by liable, do you mean could someone sue him or her for treating? For not treating? To both questions, absolutely! But the physician is only liable if a judge or jury found that the physician was negligent in not treating, or that the physician assaulted the patient by treating in the absence of informed consent.
As a general rule, non-consensual medical treatment can be administered in circumstance where there is: (1) reasonable necessity for the trespassory action, ie medical treatment; (2) ‘duress of circumstances’ in the sense of real/actual danger to the patient’s health; (3) the situation of imminent peril was not created by the treating physician. In other words, the defence of necessity, which is a full defence, will apply in any situation where time is of the essence in saving the patient from, or preventing further harm to him or her.
There are quite profound differences between the US jurisprudence of informed consent and the Anglo-Australian approach to valid consent. In Australia and England, the patient needs to be informed ‘in broad terms of the nature of the procedure’: Chatterton v Gerson [1981] 1 QB 432 at 443; Reeves v The Queen [2013] HCA 57. However, that’s another story.
This is interesting, Danuta, your circumstance #3. Does this mean that in Austraiia or England, if the situation of imminent peril was created by the treating physician (hopefully accidentally!), then the physician could not without informed consent go on to treat the patient for the imminent peril even if the patient is incapacitated (for example, under anesthesia) or a surrogate was unable to give such consent? Actually, I find this rather hard to believe. Could you please elaborate?
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