THE BASICS OF CONSENT LAW

Sheniece Smith, Esq.

BASICS

• State and federal laws require patients to have the right to consent to health care decisions.

• If appropriate consent is not given, it may result in claims for– Battery– Malpractice (negligence)– False Imprisonment

BASICS

• Procedures that are considered simple or common only require general consent.– Laboratory Services– X-Rays– Anesthesia

• This consent is usually found in the Conditions of Admissions.

BASICS

• Procedures that are considered “complicated” require informed consent.– Explanation of nature of procedure, risks and

alternatives.– Can be verbal or written.

• Exception for emergencies– No consent required to save a life

WHO MAY GIVE CONSENT?

• An adult (18 years +) with appropriate capacity.

• Minors – who are (or have been) married– who are emancipated– who are serving in the military

WHO MAY GIVE CONSENT?

• Alternatives to consent– Power of Attorney– Conservatorship– Lanterman-Petris-Short (LPS) Act Conservatorship

MINORS

• A minor is a person under 18 years old.

• Penal Code § 270: Parents have a legal obligation to provide the necessities of life for their minor children, including medical care.

REAL LIFE SCENARIO

Culture

Life

REAL LIFE SCENARIO

MINORS

• Mature Minor Doctrine– Minors may seek treatment without parental

consent for certain statutory needs.• Not adopted in California

• California Exception: Minors 15+ years of age, living away from home and managing their own finances.

MINORS

• California– Allows minors to consent to treatment for

prevention of pregnancy.– Allows a minor 12 years or older to consent to

treatment for a communicable reportable disease.– Allows minors who are victims of sexual assault to

consent to treatment.– Allows a minor 12 years or older to consent to

treatment for mental illness.

REAL LIFE SCENARIO17 years old

PARENTS OF MINORS

• Married Parents – Must agree.– If one parent consents and doctor is unaware of

the a disagreement, the doctor will not be held liable.

• Divorced Parents– Based on court order.

PARENTS OF MINORS

• Stepparents – No authority to consent.

• Third party consent for treatment of minors– Also works for coaches, babysitters, etc.

• Caregivers Authorization Form– Should not be used if guardianship is really needed.

PARENTS OF MINORS

• Adopted Parents – Same as birth parents.

• Registered Domestic Parents– Same rules apply.

• Guardians– Will have authority granted in the letters of

guardianship.

ADVANCE HEALTH CARE DIRECTIVES

• A document that authorizes another person to make healthcare decisions for a patient when the patient is no longer able to make decisions for himself or herself.

ADVANCE HEALTH CARE DIRECTIVES

• A person can be designated orally to the supervising health care provider and must be documented in the medical record.– This is called a surrogate.– Good for 60 days.

• A person can be designated in writing.– This is called an agent.– Lasts in accordance with the writing.

ADVANCE HEALTH CARE DIRECTIVES

• Requirements:– Date of execution– Patient’s signature– Witnessed by a notary public or two adult witnesses

• Can’t be the agent or health care provider– May designate an agent– Give health care instructions– Grant of authority for agent to make personal decisions– May nominate a conservator for court’s consideration, if needed– Duration is indefinite unless otherwise stated

• California Hospital Association form meets statutory requirements.

ADVANCE HEALTH CARE DIRECTIVES

• If individual is eligible for assistance by a military attorney, the directive is exempt from state laws and must contain a statement to that effect. However, still valid if statement is missing.

ADVANCE HEALTH CARE DIRECTIVES

• Can be revoked orally or in writing at any time in any way as long as patient has capacity.

• But agent designation can only be revoked in writing or by notifying the supervising health care provider.

• Destruction of the directive is not enough, but a new conflicting directive is sufficient.

• If agent is spouse, a divorce will automatically revoke the agent designation.

ADVANCE HEALTH CARE DIRECTIVES

• Can file advance health care directive with the Secretary of State.

• www.sos.ca.gov/business/sf/forms/sfl-461.pdf

MEDICAL RECORDS

• Kept private in accordance with the constitution, HIPAA, HITECH, CMIA, etc.

• PHI: Protected Health Information

MEDICAL RECORDS

• Health Insurance Portability and Accountability Act (HIPAA) addresses privacy and security of PHI.

• California Health & Safety Code also allows patients to access their records, but is more restrictive.

MEDICAL RECORDS

• Provider must respond within 30 days (or 60 days if the information requested is offsite).

• Provider may charge reasonable clerical costs and up to .25 cents per page for copies.

• Provider may charge a fee based on actual time and cost for the preparation if a summary is provided rather than actual records.

MEDICAL RECORDS

• Attorneys can obtain records for a client by– Having client sign an authorization form – Must include an expiration date– Must include statement of patient rights– Must specify access to mental health records– Must specify access to HIV tests results – Must specify access to alcohol/drug treatment

SUBPOENAS

• Must serve the following items on the patient or the patient’s attorney at least 10 days before the date the records are to be produced and at least five days prior to service of the subpoena on the hospital:– Subpoena– Affidavit or declaration (if applicable)– Proof of Service– Notice (SUBP-025)

SUBPOENAS

• The hospital will determine if the subpoena is valid before turning over the requested records.– Properly served– Appropriately designates the hospital– Notice was properly served to the patient– All time requirements are followed

QUESTIONS?