##healthcare

Patient Consent/Patient Rights & Responsiblities/End of Life

Modular Learning Outcomes

Upon successful completion of this module, the student will be able to satisfy the following outcomes:

· Case

· Define informed consent and discuss its elements.

· Define and distinguish between the 4 types of euthanasia and physician assisted suicide (PAS).

· Discuss the link and implication of the Patient Self Determiniation Act relative to euthanasia and physician assisted suicide (PAS).

· SLP

· Apply patient rights and responsibilities to the analysis of health industry scenarios.

· Evaluate the extent and complexity of end of life concerns impacting the health care environment.

· Discussion

· Understand the rights and consequences of accepting or refusing medical treatment.

Module Overview

Patient Consent/Patient Rights & Responsibilities/End-of-Life

Patient Consent

The Patient Self-Determination Act of 1991, a federal law, protects the rights of individuals to make decisions regarding their own health care. The act provides that each individual has a right to make decisions concerning his/her medical care, including the right to accept or refuse medical or surgical treatment. This begs the question - How does a patient make decisions concerning medical care and treatment? This is where informed consent comes in...

Assessing Decision-making Capacity

A patient is considered to be competent to make medical decisions regarding his or her care, unless a court determines otherwise. The clinical assessment of decision-making capacity should include the patient’s ability to:

1. understand the risks, benefits, and alternatives of a proposed test or procedure;

2. evaluate the information provided by the physician;

3. express his or her treatment preferences; and

4. voluntarily make decisions regarding his or her treatment plan without undue influence by family, friends, or medical personnel. (Pozgar, 2009)

Nurses and Informed Consent

In general, a nurse has no duty to advise a patient as to a particular procedure to be employed: advise the patient as to the risks, benefits, and alternatives to the recommended procedure; or obtain a patient’s informed consent to a procedure merely because the physician directed a nurse to have the patient sign a consent form. (Pozgar, 2007) The nurse can be held responsible for ensuring that the informed consent or release form is obtained prior to the procedure.

Physician and Informed Consent

Physicians are expected to disclose to their patients the risks, benefits, and alternatives of recommended procedures. Disclosure should include what a reasonable person would consider material to his or her decision of whether or not to undergo treatment. (Pozgar, 2009) Duty to inform rests with the physician and requires the exercise of delicate medical judgment. It is the physician, not the hospital, who has the duty of obtaining informed consent. (Mathias v. St. Catherne’s Hopsital)

Lack of Informed Consent

Virtually all states have recognized, either by express statute or common law, the right to receive information about one's medical condition, the treatment choices, risks associated with the treatments, and prognosis. The information must be in plain language terms that can readily be understood and in sufficient amounts such that a patient is able to make an "informed" decision about his or her health care.

If the patient has received this information, any consent to treatment that is given will be presumed to be an "informed consent." A doctor who fails to obtain informed consent for non-emergency treatment may be charged with a civil and/or criminal offense such as a "battery" or an unauthorized touching of the plaintiff's person. (FindLaw)

Hospital’s Role in Informed Consent

Hospitals are not generally responsible for informing patients as to the risks, benefits, and alternatives to specific procedures; however, there are some cases in which hospitals have a duty to provide patients with informed consent. If the patient will be undergoing a diagnostic procedure where there is a potential risk to the patient, the hospital should ensure that an informed consent has been obtained. For example, in the case Keel v. St. Elizabeth Medical Center, KY, the plaintiff sued the hospital for failing to inform him of the potential risks associated with being administered contrast dye in preparation for a CT scan. The court found for the plaintiff and supported the position that the hospital has a duty to inform the patient of the potential risks associated with being administered the contract dye. (Ky, 1992)

Adequacy of Consent

A physician must reveal to his or her patient such information as a skilled practitioner of good standing would provide under similar circumstances. A physician must disclose to the patient the potential of death, serious harm, and other complications associated with the proposed procedure. (Pozgar, 2007) The scope of the physician’s duty to disclose, as noted in Wooley v. Henderson, is to be measured by those communications that a reasonable medical practitioner in that branch of medicine would make under the same or similar circumstances. (Me., 1980)

Verbal Consent

There is no legal requirement to obtain written consent from patients. With that said, verbal consent is more difficult to corroborate. In Siliezar v. East Jefferson General Hospital, the plaintiff alleged that the defendant breached the standard of care by not obtaining a written consent prior to surgery. The court ruled in favor of the defendant and took the position that a verbal consent was sufficient for surgery. (La. Ct. App. 5 Cir. 1/11/05)

Written Consent

Written consent is preferred to oral consent. It provides evidence that the patient’s wishes were respected. States have consistently taken the position that consent, in order to be effective, must be informed consent. In this light, the informed consent form should contain the following information:

1. the nature of the patient’s illness, disease, or injury;

2. the procedure or treatment consented to;

3. the purpose of the proposed treatment’

4. the risk and probable consequences of the proposed treatment;

5. the probability that the proposed treatment will be successful;

6. any alternative methods of treatment and their associated risks and benefits;

7. the risks and prognosis if no treatment is rendered;

8. an indication that the patient understands the nature of any proposed treatment, the alternatives, the risks involved, and the probable consequences of the proposed treatment;

9. the signature of the patient, physician, and witness; and

10. the date the consent is signed. (Pozgar, 2009)

Consent for Routine Procedures

There are a number of healthcare organizations that are having patients sign general informed consent forms upon admission to cover such routine procedures such as diagnostic imaging and testing, medical treatments, and the everyday routine touching of the patient. This facilities need to be careful not to rely on these documents for more specific and invasive/noninvasive procedures.

Consent for Specific Procedures

There are a variety of consent forms found in the health care setting designed to more specifically describe the risks, benefits, and alternatives of particular invasive and noninvasive procedures. Such forms include consent for: anesthesia, cardiac catheterization, surgery, radiation therapy, administration of blood and blood products, chemotherapy, CT and MRI scans, endoscopies, and colonoscopies. (Pozgar, 2009)

Implied Consent

Implied consent is generally presumed when immediate action is required to prevent the death or permanent impairment of a patient’s health. It is generally presumed that a reasonable person would want lifesaving measures taken to preserve life and limb. If the patient is physically unable to grant consent and there isn’t someone legally authorized to give consent on behalf of the patient, then consent is presumed granted.

Statutory Consent

States have adopted legislation concerning emergency care. In most cases, a true medical emergency negates the need for formal consent. In other words, if a patient is unable to give consent, consent is implied. The courts take the position that a reasonably prudent person would want lifesaving measures taken to preserve life and limb.

Judicial Consent

The courts may grant consent on an emergency basis. This is not a practice the courts like to engage in, so it should only be sought after all other alternatives have been pursued.

Who May Consent?

Patient consent is ordinarily required before treatment. If the patient is physically or legally unable to grant consent, then the hospital/provider must obtain consent from someone who is authorized to grant consent on behalf of the patient.

Competent Patients

A competent adult’s wishes concerning his or her person may not be disregarded. The court in In re Melideo held that every human being of adult years has a right to determine what shall be done with his or her own body and cannot be subjected to medical treatment without his or her consent. When there is no compelling state interest that justifies overriding an adult patient’s decision, that decision should be respected. (N.Y. Sup. Ct. 1976)

Guardianship

A guardian is an individual who by law is vested with the power and charged with the duty of taking care of a patient by protecting the patient’s rights and managing the patient’s estate. Guardianship can be permanent or temporary. (ExpertLaw)

Who May Not Consent?

Minors

The courts have held, as a general proposition, that the consent of a minor to medical or surgical treatment is ineffective and that the physician must secure the consent of the minor’s parent or someone standing in loco parentis; otherwise, he or she will risk liability. Although parental consent should be obtained before treating a minor, treatment should not be delayed to the detriment of the child. (Pozgar, 2009) Parental consent is not necessary when the minor is married or otherwise emancipated.

Incompetent Patients

A person who is mentally incompetent cannot legally consent to treatment. Therefore, consent of the patient’s legal guardian must be obtained. When no legal guardian is available, a court that handles such matters must be petitioned to permit treatment. (Pozgar, 2007)

Right to Refuse Treatment

Adult patients who are conscious and mentally competent have the right to refuse medical care to the extent permitted by law, even when the best medical opinion deems it essential to life. (Pozgar, 2009)

Release Form

If a patient refuses to consent to treatment, this should be documented in the medical record. This is normally done though the patient signing of a release form. Should the patient refuse to sign the release form, this fact should be noted on the form, and then put in the medical record. It is also advised that the management team bring this matter to the attention of legal counsel.

Defenses and Failure to Inform

Remember that the burden of proving the lack of informed consent is on the plaintiff. Several defenses are available to healthcare providers sued for lack of informed consent. For example, New York provides the following defenses:

1. The risk not disclosed is too commonly known to warrant disclosure

2. The patient assured the provider that he did not want to be informed of the risks or consequences of the procedure

3. Consent by or on behalf of a patient was not reasonably possible

4. The provider, after considering all factors, decided that informing the patient of the risks and consequences of the procedure would adversely affect the patient's condition

PATIENTS RIGHTS AND RESPONSIBILITIES

When we patients access healthcare, we do so expecting we have certain rights. The wiser patients also realize that along with those patient's rights, we have responsibilities, too.

As Americans, we have a sense of being entitled to certain rights based on our federal Bill of Rights and judicial heritage. When those rights are violated, we have the ability to pursue justice through the legal system.

Patients' rights are very different. There are few rights that are clearly spelled out, except those that regard privacy or the ability to obtain our medical records, as determined through the federal HIPAA Act. Individual states have enacted other laws that usually impact only hospital care.

More often, individual facilities (like hospitals) and physician practices offer their own list of patients' rights. However, it's unclear as to whether those could ever be enforced if there is a problem.

However, there are a number of rights that are accepting as being true, even though they may not be officially recorded anywhere. Some are simply based on respect. Others are based on our responsibilities as human beings. Others have evolved as the need warrants.

Consider these Patients' Rights

· The Right to Be Treated with Respect

· The Right to Make a Treatment Choice

· The Right to Refuse Treatment

· The Right to Obtain Your Medical Records

· The Right to Privacy of Your Medical Records

· The Right to Informed Consent

· The Right to Make Decisions About End-of-Life Care

The entitlement of patients' rights for Americans is accompanied by patients' responsibilities, too. In order to get the best care, and find our most successful medical outcomes, we must adhere to these responsibilities.

Consider these Patients' Responsibilities

· Maintaining Healthy Habits

· Being Respectful to Providers

· Being Honest With Providers

· Complying with Treatment Plans

· Preparing for Emergencies

· Reading Behind the Headlines

· Making Decisions Responsibly

· Understanding Prescription Drugs and Their Possible Effects

· Meeting Financial Obligations

· Reporting Fraud and Wrongdoing

· Avoiding Putting Others at Risk

Patient Advocacy

All caregivers are considered patient advocates and should act in the best interest of his or her patients. Most states have legislatively established ombudsperson programs. The ombudspersons are responsible for investigating reports of resident abuse in nursing facilities.

END OF LIFE

"It has been estimated that of the 2 million Americans who die every year, approximately 80% die in hospitals or nursing homes, and 70% of those die after a decision to forego life sustaining treatment."

Cruzan v. Director of the Mo. Dept. of Health (1990) 497 U.S. 261, 110 S.Ct.2841.

Advances in medical technology have given us the power to prolong life. With this extension of life, many issues have surfaced raising legal concerns. Euthanasia or Mercy killing and assisted suicide remain hot topics for debate.

Traditionally, death has been defined as the "cessation of respiration, heartbeat, and certain indications of central nervous system activity such as respiration and pulsation." Black's Law Dictionary.

With technological advances allowing us to maintain the respiration and circulation of a patient, it was necessary to rethink the definition of death. In 1974, the American Medical Association recognized that death occurs when there is "irreversible cessation of all brain function including the brain stem." This is known as "brain death."

The significance of the definition of death is that it impacts the respective roles of the physician, patient and family as it relates to decision-making.

Do Not Resuscitate (DNR) Order

It's a legal document that patients or (more often) their loved ones sign in the presence of witnesses. It says that if the patient gets into certain kinds of trouble, we're not supposed to use "extraordinary means" to help them out. Typically, it means if their heart stops the healthcare team shouldn’t code them and if they have trouble breathing the healthcare team shouldn’t put in the endotracheal tube to keep them breathing on a machine. (Time)

Futility Care

Futility care refers to the belief that in cases where there is no hope for improvement of an incapacitating condition that no course of treatment is called for. It is distinct from the idea of euthanasia because euthanasia involves active intervention to end life, while withholding futile medical care does not encourage, nor speed the natural onset of death. (Pozgar, 2009)

Euthanasia

The following should help you remember the distinction between the four categories of euthanasia:

Active Voluntary - One other than the patient brings about the death of the patient, with the patient's consent. Example - Overdose of morphine injected by a nurse after consent by the patient.

Active Involuntary - One other than the patient brings about the death of the patient, without the patient's consent. Example - Overdose of morphine injected by a nurse while the patient is in a coma.

Passive Voluntary - Death is brought on by withholding/ withdrawing life sustaining treatment with the patient's consent. Example - Discontinuing respirator after patient specified request either verbally or in writing.

Passive Involuntary - Death is brought on by withholding/ withdrawing life sustaining treatment. Consent for the act comes from one other than the patient. Example - Discontinuing respirator upon request by family members, or pursuant to court order.

Active Euthanasia, whether voluntary or involuntary, is illegal in the United States. Dr. Kevorkian was prosecuted and convicted because he effectively committed an act of Active Euthanasia. Passive Euthanasia on the other hand is legal and has been practiced for years.

Physician Assisted Suicide (PAS)

Physician assisted suicide is a voluntary termination of one's own life through the administration of a lethal substance with the direct or indirect assistance of a physician. Physician-assisted suicide is the practice of providing a competent patient with a prescription for medication for the patient to use with the primary intention of ending his or her own life.

Decision Making Devices

In recognition of a patient's right to self-determination concerning medical care and treatment, every state permits some form of decision making in the event the individual is incapacitated or otherwise unable to make decisions.

In general, Advance Directives are written instructions expressing an individual's health care wishes in the event that he or she becomes incapacitated and unable to make decisions.

A living will is a document in which an individual expresses his/her wishes regarding the application of life-support or other life-sustaining treatment in the event that he/she is unable to do so in the future. In other words, an individual can describe the treatments that he/she does not wish to receive, in advance. Forty-one states have statutes allowing a patient to state his/her wishes in advance.

Power of Attorney

The Durable Power of Attorney, as recognized in every state including the District of Columbia (called Durable Power of Attorney for Health Care in California), is a legal device that permits a person (called the "principal") to give another person (called "attorney-in-fact") authority to act on his/her behalf. While the person holding the power of attorney has authority to handle a wide range of legal matters, the Durable Power of Attorney for Health Care limits the authority to matters concerning the health and medical treatment of the principal.

Health Care Proxy

A health care proxy, recognized in thirteen states, allows a person to appoint an "agent" to make treatment decisions in the event the individual becomes incapacitated and unable to make decisions.

Of course, in the absence of an appointed agent or dispute among family members, a court of proper jurisdiction may appoint a guardian to make decisions on behalf of the incapacitated patient.

Guardianship & Conservatorship

Guardianship or Conservatorship is a legal mechanism by which a court declares a person incompetent and appoints a guardian.

Patient Consent/Patient Rights & Responsiblities/End of Life

Required Readings

Benak, L. D. and Applegate, S. (2006). Informed consent and issues surrounding lack of capacity vs. incompetence. Journal of Forensic Nursing, 2(1), p. 48.

Ferguson, O. (December, 1997). Causing death or allowing to die? Developments in the law. Journal of Medical Ethics, 23(6), p. 368.

Gesang, B. (2008). Passive and active euthanasia: What is the difference? Medicine, Health Care, and Philosophy, 11(2), pp. 175-180.

Pozgar, G. (2007). Legal aspects of health care administration (10th ed.). Sudbury, MA: Jones and Bartlett Publishers.

Pozgar, G. (2009). Legal essentials of health care administration. Sudbury, MA: Jones and Partlett Publishers.

Salladay, S. A. (August, 2000). Grandmother's plea. Nursing, 30(8), p. 66.

Torrey, T. (February, 2009). "The wise patient's guide to rights and responsibilities". About.com. Retrieved from http://patients.about.com/od/empowermentbasics/a/patrr.htm

Websites

ExpertLaw. Retrieved from http://www.expertlaw.com/library/estate_planning/guardianship.html

FindLaw "Gross Negligence and Lack of Informed Consent" Retrieved from http://injury.findlaw.com/medical-malpractice/pross-negligence-lack-of-informed-consent.html

MedicineNet.com. Retrieved from http://www.medterms.com/script/main/art.asp?articlekey=32841

Optional Readings

390 N.Y.S.2d 523 (N.Y. Sup. Ct. 1976)

842 S.W.2d 860 (Ky. 1992)

418 A.2d 1123 (Me. 1980)

Cruzan v. Director of the Mo. Dept. of Health (1990). 497 U.S. 261, 110 S. Ct. 2841.

Mathias v. St. Catherne's Hospital, Inc., 569 N.W.2d 330 (Wis. App 1997)

No. 04-CA-939 (La. Ct. App. 5 Cir. 1/11/05)