Informed Consent - Ethical and Legal Perspectives Flashcards
name the 4 types of medical battery
4 types
- no consent to any procedure
- consent to a different procedure
- same procedure, different body part
- same procedure, same part, different doctor
define medical battery
- intentional violation of patient’s right to direct their own medical treatments
- main point of dispute: whether patient agreed to the treatment
- no need to prove injury or negligence, but that medical personnel engaged in unauthorized touching, contact or handling of the victim
- different from medical malpractice: negligence
describe the core complaint of informed consent
- core complaint: physician failed to disclose information
- legally actionable only if the physician had a duty to disclose that information
list the 5 elements of informed consent
- voluntarism
- capacity
- disclosure
- understanding
- authorization
describe how to explain informed consent to a patient
- alternatives (one of which is doing nothing)
- inherent risks associated with each alternative
- probability
- severity
- who will be providing treatment and their roles
- physician experience
the key to informed consent is to find a _____
the key to informed consent is to find a disclosure balance
define a reasonable patient
- duty measured by what a hypothetical reasonable patient would deem material and significant in making a treatment decision
describe a reasonable physician
- aka “professional standard” or “malpractice standard”
- professional custom
- if the custom is to not disclose –> no duty
- what would a reasonable physician have disclosed under the same circumstances?
define the 3 related terms for capacity
- competence: legal determination by a court that applies to all decisions
- insanity: legal determination by a court in relation to criminal responsibility
- capacity: clinical determination that is decision specific
define capacity
- ability to understand, make a decision and communicate that decision
- can fluctuate over time
- is decision-specific
- understanding the treatment regimen for a laceration (disinfect, stitches) vs. treatment regimen for testicular cancer
- a clinical decision with legal consequences
if patient’s decision is not impaired by cognitive or volitional defect, physician must ______
if patient’s decision is not impaired by cognitive or volitional defect, physician must respect decision
- otherwise, not honoring choice = paternalism
- violation of patient autonomy
describe when a patient would lack capacity
- all patient are presumed to have capacity until the presumption is rebutted
- why would a patient lack capacity?
- had at one point but lost (i.e. dementia)
- not yet acquired (i.e. minors)
- never had capacity (i.e. mental disability)
describe what happens during lack of capacity
- if a patient cannot make decisions, a Substitute Decision Maker (SDM) is needed
describe the 3 options for SDM
- patient selects his/her SDM via advance directive (agent or durable power of attorney for health care - DPAHC)
- someone they trust
- knows their preference
- cares about their welfare
- if no pre-specified agent or DPAHC, default priority list (surrogate, proxy)
- sequence: agent/DPAHC > spouse > adult child > parent > adult sibling > adult grandchild/next closest relative
- if no pre-specified agent of DPAHC and no adult family member as court to appoint an SDM
- “guardian”
- “conservator”
describe the hierarchy in substitute decision making
-
subjective
- follow previous patient instructions addressing the situation, if available
-
substituted judgement
- do what the patient would decide to do
- must know the patient well
-
best interests
- used if substituted judgement will not work because the SDM does not know the patient’s values and preferences
- burden of treatment vs. benefits assessment
