Medical consent is typically granted by the patient receiving the treatment, as long as they are of consenting age. For children, consent is generally given by a parent or guardian. For those who cannot speak for themselves, such as someone who is elderly, has a disability, or presents a special need, consent is generally given by a spouse or other family member. A medical consent form is generally complete and consent is officially granted when the person giving consent signs the form. A copy is generally given to both parties. Medical consent is generally given along with a medical waiver, that releases the medical provider from liability.
Although specific details vary by state, medical consent means that a physician or other medical care providers must inform a patient of any and all potential benefits, risks, and alternatives involved in a medical procedure. In other words, patients have the right to make an informed decision about their medical care based on all of the available medical information.
Informed consent is required whenever a patient requires medical treatment or care that puts them at any risk of injury. Consent is not required for simple diagnostic tests or other procedures where a patient’s participation implies consent.
Informed consent recognizes a patient’s right to be informed about a procedure, treatment, surgery, or other medical procedure before deciding whether or not to proceed with the procedure. Informed consent is designed to protect patients, who have the right to refuse any treatment they do not desire.
For doctors, as long as a patient is mentally capable of making informed, rational medical decisions regarding their healthcare, medical treatment cannot begin unless informed consent is granted. If the patient is a minor, has a serious mental disability or cannot give consent, the patient’s parent, legal guardian, or court-appointed executor must grant consent.
Keep in mind that these medical and informed consents are used interchangeably.
Often, medical consent situations are expected, but in other cases, they arise in moments of a medical emergency. This guide is designed to provide you with all of the information you need to manage any medical consent scenario, anticipated or unexpected.
A medical consent form must perform three functions:
This can be brief and should stand out on the page. Consider making it bold and putting a nice tidy box around it. For example:
Knee replacement is a surgical procedure to relieve disability or pain and improve/sustain mobility of the knee. It involves partial or total replacement of damaged and/or diseased weight-bearing parts in the knee-joint with plastic and/or metal components.
This section must summarize risks particular to the procedure and to the type of process in general. For example, a consent form (also known as an authorization form) for knee surgery should include something like this:
I understand all possible risks of knee surgery which include damages incurred to the leg and surrounding area.
As well as something like this:
I understand all possible risks of invasive procedures include infection, bleeding, paralysis, stroke, permanent injury, and death.
A good way to handle medical alternatives is to include a "fill-in clause," such as -
Possible alternatives to knee surgery include _________.
This section should also include explicit statements that the purpose of the surgery, as well as all risks, have been explained to the patient/caregiver. For example:
The purpose and nature of this procedure have been explained to me. I have also been informed of all medically significant risks of the aforementioned procedure. I am aware that no guarantee can be made regarding the outcome of the aforementioned procedure. All reasonable alternative treatments, including consequences and medically significant risks, have also been explained to me. I have also been made aware of the risks and consequences of no treatment.
If you want to be thorough (which you should), you can throw in a short quiz section at the end. Questions can look something like the following:
The benefits of knee replacement surgery include _______.
One of the risks of knee replacement surgery is _________.
This will ensure that the patient/guardian has a complete understanding.
In this last section, the patient/guardian must provide his or her legal consent. The patient's full legal name must be provided, along with the name of the procedure and the full legal name of the physician and healthcare institution.
If the language of the medical consent form also releases the medical professional from liability, it becomes a medical liability waiver form.
Informed consent is required whenever a patient requires medical treatment or care that puts them at any risk of injury. Consent is not required for simple diagnostic tests, x-rays, or other procedures that are not life-threatening where a patient’s participation implies consent.
There are some situations where the requirements for medical consent vary. In others, they do not apply at all. Here’s a rundown of each:
Medical consent is not required in an emergency.
If a physician determines a patient is experiencing a medical emergency, they can treat the person regardless of medical consent.
For example, if a person is unconscious and in danger of death or serious injury, if care is not immediately administered, medical consent is not required. This may include a blood transfusion, surgery, or other life-saving medical treatments.
If the medical team administering treatment knows the patient has an advance directive refusing care in a certain situation, they will make a decision based on knowledge of the wishes in that document
For minors: the requirements for medical consent are even lower. In many cases, a doctor can administer care without consent, even if the patient is not experiencing an emergency.
The state can also override parents under the “parens patriae” doctrine, which enables the state to act as a parent and grant consent for medical care.
Child Protective Services (CPS) may also be called in to give consent.
The patient is informed about the possible risks and benefits of the treatment.
The patient is told about the risks and benefits of other options, including no treatment.
The patient has a chance to ask the doctor questions. The doctor must answer all questions.
The patient has time to discuss the plan with family or advisors (if needed).
The patient considers all provided information and makes a decision in their best interest.
The patient shares their decision with their doctor.
The patient signs a consent form, if necessary.
Note: Once you sign a consent form, you have legally agreed to the plan or procedure on the authorization form, unless you revoke the consent before treatment is given.
There are several situations when it is advisable for healthy children to have a medical consent form. This would come in handy in an urgent situation where a child may need emergency medical treatment. These typically include instances where children are not in the care of their parents or legal guardian, who, therefore may not be present in the event of a medical emergency. Some of these situations include:
If your child will be in the care of a responsible adult other than a parent, it is wise to provide the adult chaperone with a small packet containing all pertinent information to the child's health insurance, medical history, as well as a medical consent form, should an emergency arise. This packet should include:
Even in situations where co-parents share legal custody, having a medical release form that has been notarized by a notary public ensures that treatment will not be delayed in the event of a medical emergency.
If you are a stepparent, you have no official legal status to authorize medical treatment for your child. In the event of a medical emergency, the child will be treated, but in less serious situations (e.g. a broken arm) they may not be treated until a biological parent can provide consent. To avoid this situation, you can have your partner grant you a power of attorney, or have a form signed by your partner and their ex-partner authorizing you to represent your partner when consenting medical procedures.
Medical consent forms for minors are state-specific. This means that you need to follow the laws in your state that govern the document in order for it to be legally binding. Even if your child travels out of state, the medical consent form will most likely be honored provided that you made sure that it adheres to the laws in your home state as well as includes all the information necessary for healthcare professionals to help.
To create your state-specific medical consent form:
Choose the state of your residence. Doing so helps the FormSwift document builder open the proper template for your use.
Complete the boxes requesting the following information in the introductory paragraph:
Your full legal name as the parent or guardian
The minor’s full legal name
The minor’s date of birth
The name of the person authorized to seek medical care for the child
The address, city, and state of the person authorized to seek medical care
The date the medical consent form goes into effect and the date that it ends.
Sign, date, and notarize the document. This is best done in front of a notary even if your state doesn’t require it.
Additionally, you may also want to create a background sheet about your child. It should have your child’s name, your name and your status (i.e., parent or legal guardian), your home address (including city, state, and zip code), and your phone number.
This document should record accurate and up to date information such as the date your child last received their tetanus shot, when they had other pertinent vaccinations, which foods or medications the child is allergic to, their daily medication list, their blood type, if they have any conditions of which healthcare providers should be aware, the name of the child’s regular doctor as well as that doctor’s contact information, the name of the health insurance company and policy number, and list if there is a preferred hospital. This informational sheet should be attached to the medical consent form.
Elderly patients may present consent issues related to mental competence. In these cases, it is recommended they have a power of attorney or other documents that clarify consent authority. Elderly patients should have documents that outline decision making authority readily available to provide to medical professionals. These documents include a living will, health care proxy, and do not resuscitate order.
Recurring treatments also commonly present consent issues with elderly patients. When a patient agrees to undergo recurring treatment, the initial informed consent process covers the entire course of medical services provided during treatment. However, patients should know that they can question the treatment process and have the option to decline any individual treatment.
Informed consent also covers clinical trials and research. If you participate in either, here’s what you need to know about informed consent.
What you will be told in the informed consent process:
What the clinical trial is trying to determine
What you will be asked to do and for how long
Possible benefits and possible risks (if known)
Who to contact with questions/concerns
Other treatment options
You can leave the study with no penalty at any point
How your personal info (medical history, current medical conditions, address, phone number, etc.) will be used/protected
Tips for participating in clinical trials:
Keep a copy of the consent form or ask for one if you aren't provided one.
No informed consent document can require you to waive your legal rights.
If you need help understanding a consent form before signing it, make sure you ask for help and take your time.
After the back and forth between a patient and their doctor is completed (outlined above), a patient may decline the physician’s recommendation and acknowledge the risks of doing so. This action is called informed refusal.
Here’s a simple way to consider whether or not malpractice may have occurred in your medical care:
The standard for a physician in a malpractice suit is how other physicians in their specialty would have responded in a similar situation. If other physicians would have acted similarly, then no malpractice exists. If, however, other physicians would have acted differently, malpractice may have occurred.
For minors, whether a lawsuit is filed and how malpractice lawsuits are handled depends in part on the child’s response to treatment--i.e. if a minor responds positively to treatment, it is hard to find evidence of malpractice.
We hope this guide provides you with important information about the medical consent process and legal standards informing it, as well as your rights as a patient or parent or guardian of a patient. Whether medical situations arise requiring consent are expected or unexpected, we believe this guide provides you with the information you need to navigate the medical consent process in an informed manner that guides you through planning ahead for any unforeseen medical consent emergency.
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