Consent for "non-competent" parties

Showalter, J. S. (2017). The Law of Healthcare Administration (Vol. Eighth edition). Chicago, Illinois: Health Administration Press

3. Discussion #2

Bryan Cerritos

The Merriam-Webster Dictionary (n.d) defines consent as: “to give assent or approval.” In layman's terms, to give someone or a group of people consent is to express, either written or verbally, explicit agreement and/or approval. The idea of consent is something that our nation believes is an extension, and practical application, of our inherent rights. As was similarly stated by Justice Cardozo in Schloendorff v. Society of New York Hospital, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body…” (Showalter, 2017, p.380). As a result, the country’s legal system has gone to great lengths to define and provide guidance in regards to consent. This has been especially the case within the healthcare industry.

The nature of the healthcare industry is one where the physical and psychological welfare of individuals are continuously at stake. As a result, consent must be effective, that is to say, informed by way of information that is reasonably complete, comprehensible, as well as understandable by the individual that is granting it (Showalter, 2017). Additionally, this information must be provided by the individual asking for consent (Showalter, 2017). As much as circumstances permit, the patient must also be given adequate opportunity to reflect upon the information and ask questions (Showalter, 2017). Even though the law has gone to great lengths to define every facet of consent, including legalizing express and implied consent, there are still some “grey areas” where the issue of consent is not as clear as one would hope.

The preservation of life and prevention of permanent impairment are foundational values our society holds dear (Showalter, 2017). As a result, emergency situations often do not require express or implicit consent (Showalter, 2017). In these cases, the law presumes, as well as common knowledge, that consent would be given anyways. The “gray area” arises when a competent adult refuses to consent to a medical treatment that would preserve life and/or prevent permanent impairment (Showalter, 2017). In this case, an individual’s decision to not give express or implied consent must be honored (Showalter, 2017). This is the case even if the refusal to consent to medical care will likely result in death. It must be noted that this refusal to care must be honored even if the patient becomes incompetent later on.

Perhaps the greatest exemplification of the common-law principle of self-determination, a competent patient’s right to accept or refuse medical treatment is something that a medical authority must honor in lieu of civil and possibly criminal prosecution (Leo, 1999; Showalter, 2017). This Bill of Rights protected mandate seeks to protect individuals from infringement on their basic freedoms, and in this case includes the extension of self-determination related to the right to exercise control over one’s body (Leo, 1999). Of course, issues arise when a patient’s mental ability and cognitive capability, or in other words,“competence,” comes into question. If deemed incompetent by a court, then the individual will be referred to as de jure incompetent (Leo, 1999). Here, the individual loses autonomy, and is assigned a guardian that will make decisions on their behalf.  

References

Leo R. J. (1999). Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians. Primary care companion to the Journal of clinical psychiatry, 1(5), 131-141.