Patient Autonomy and Informed Consent

1
Legal Issues

• Patient Autonomy and Informed Consent

2
Legal Issues

• Begin reading at Law, p 82 (we covered the
  ethical issues in the Ethics text).
• Bottom of p 82 the book talks about these torts
  assault, battery, false imprisonment, negligence
  with regard to lack of informed consent.
• For a list of differences between torts and
  crimes
• http//www.earlham.edu/peters/courses/ct/crimtort
  .htm

3
Legal Issues

• Definitions
• Tort a civil wrong for which the law provides a
  remedy
• Tort Action plaintiff filing to recover damages
  for personal injury or property damage occurring
  from negligent conduct or intentional misconduct

4
Torts

• For imaging professionals the following torts are
  most common
• Intentional Tort
• assault
• battery
• false imprisonment
• Defamation (for Ch. 5, on truthfulness)
• Unintentional Tort
• Negligence (covered in Ch. 2)
• failure to obtain informed consent
• breach of patient confidentiality (covered in Ch.
  2)

5
Intentional Torts

• Intentional Torts
• Assault
• deliberate act which
• threatens harm to another person without consent,
  and
• victim perceives others ability to carry out
  threat
• Battery
• touching to which the other has not consented
• even if the touching may benefit other

6
Intentional Torts

• Intentional Torts
• Assault and Battery are a concern especially when
  restraints are used in imaging
• The book uses the term medical immobilization to
  distinguish restraint with and without consent
• Medical immobilization without consent is
  restraint
• When restraint is required, imaging professionals
  should be able to justify it using the following
  4 criteria

7
Intentional Torts

• Legal Criteria for Use of Restraint (from Box
  4.4, top of p84)
• Touching or restraining to which the patient has
  not consented is needed to protect the patient,
  health care members, or the property of others
• The restraint used is the least intrusive method
  possible
• Regular reassessment of the need to restrain
  occurs
• The restraint is discontinued as soon as
  practicable
• When dealing with children, it would be important
  to make parents aware that you are guided by
  those criteria

8
Intentional Torts

• Law, p84
• False Imprisonment Unlawful confinement within
  a fixed area
• Confined must be aware of confinement
• Confined must be harmed by confinement
• The book says
• Even if the health care provider does not intend
  harm, these allegations can be made if the
  patient perceives the acts to be done with the
  intent of harm. Law p 84
• Note that intent is not part of the definition of
  false imprisonment above, and so the quotation
  above doesnt make sense. Is intent to harm part
  of false imprisonment or not? Google false
  imprisonment law sites dont mention it in
  their definitions.

9
Unintentional Torts

• Informed Consent
• Case law governing informed consent was
  established in these 2 cases
• 1952, Salgo v Leland Stanford Jr. University
  Board of Trustees
• 1972, Canterbury v Spence
• All 50 states now require informed consent

10
Informed Consent

• There are 2 exceptions to the requirement for
  informed consent
• Emergencies
• Therapeutic Privilege

11
Informed Consent

• In general, to prove lack of informed consent, a
  plaintiff must show
• A material risk existed that was unknown to the
  patient
• The risk was not disclosed
• Disclosure would have led a reasonable patient to
  reject treatment or seek other course
• Patient was injured by lack of disclosure
• Note that the details of your particular hospital
  or clinic standard of care, local statutes,
  professional standards, etc., will play a role in
  determining disclosure requirements

12
Informed Consent

• Informed Consent Law
• 2 points
• Nearly all states impose the duty of obtaining
  informed consent on physicians only
• Some have tried to impose the duty on hospitals
• The book says imposing the duty to obtain
  informed consent on hospitals has met with
  limited success you should find out who has
  that duty when you find a job

13
Informed Consent

• Read p 86,
• Pauscher v Iowa Methodist Medical Center
• (for an example of an informed consent action
  that failed)
• Keel v St. Elizabeth Medical Center
• (for an action that succeeded)

14
Informed Consent

• Review Elements of Informed Consent (p 87 Box
  4-5)
• Note the final element
• Consent to treat a minor patient is usually given
  by a parent or guardian, but if the minor patient
  is at least 7 years old, he or she should be
  included in the decision-making process
• That introduces the question of how to approach
  children

15
Informed Consent

• On p 88, second paragraph, the book notes 2
  concepts the American Academy of Pediatrics
  recognizes regarding children
• In most cases physicians have a moral and legal
  duty to obtain parental permission to treat a
  minor
• In the case of emancipated minors (age 14 to 18,
  legally not living with parent or guardian) or
  mature minors with adequate decision-making
  capacity, consent should be obtained directly
  from patient