In the medical field, just as everywhere else, you’re the only person entitled to decisions over your body. Ethics and the law all agree that you should be handed all the tools to decide what healthcare you want to receive and that you have the right to accept or refuse treatment or procedures. This agreement to care is called consent.
The three types of medical consent have legal consequences if they are violated. Treating you without your permission can have devastating consequences for your mental and physical health, but there are actions you can take to protect yourself. Here’s what you need to know about medical consent and how it may become malpractice in California.
Understanding Consent in Medical Environments
There are three types of medical consent: implied, expressed, and informed.
- Implied consent occurs when the person about to receive medical care agrees to treatment via an action or inaction because they are not able to give it any other way. For example, if you’ve been in an accident and a healthcare team is trying to help you, you might only be able to give a thumbs-up or blink to convey that yes, you’d like them to do what they can to make the pain stop or even save your life.
- Express consent is what the healthcare team from this example will try to obtain as soon you can communicate, verbally or in written form.
- Informed consent is more detailed and more complex. It’s a way of giving your express agreement to a treatment after receiving much more information. It’s what happens when you receive a diagnosis and are presented with several treatment options so that you can make the best decision for yourself. It is a principle of the American Medical Association’s Code of Medical Ethics.
Informed consent can be broken down into four critical components: competence, disclosure, comprehension, and voluntariness.
Competence here is your ability to make health decisions for yourself. In some cases, it might be necessary to have a surrogate to make these decisions. The principle of disclosure means that your healthcare provider must disclose enough information for you to make an informed choice. For comprehension, they must make sure you understand it all well enough, allowing you to ask questions. Lastly, your permission for treatment, directly or via your surrogate, must be given voluntarily, of your own will.
Informed Consent and Medical Malpractice in California
Informed consent is not just an ethical principle; it’s also a legal matter. In California, the law states that no healthcare treatment may be administered without informed consent except in emergencies.
The California Code of Regulations, title 9, makes it the responsibility of the physician to determine what information is relevant and necessary to make decisions regarding treatments or procedures. It stipulates that a patient only consents appropriately if they have received a verbal explanation that they have the right to refuse or accept and that they must also sign a written form saying they have been notified of this right. The form is then kept in their medical records.
Lastly, the same law gives you the right to change your mind about receiving treatment for any reason and at any time. You also have the right to an interpreter if you or your legal representative don’t speak English or are deaf.
In California, you are considered an adult patient when you have reached the age of 18 or if you are an emancipated minor treated by the law as an adult. To be considered able to make your own healthcare decisions, you also must have legal capacity, that is, the ability to understand, make, and communicate a decision. If you anticipate losing capacity, you may designate a surrogate in advance by executing a written advance health care directive or orally designating a surrogate decision maker.
Risks and Consequences of Lacking Consent
Treating without patient permission is considered unethical because it fails to respect a person’s body autonomy, their right to make choices, and their ability to be an active participant in their healthcare. It could also affect the patient’s health, not only in case of medication interactions or allergies but also their ability or willingness to follow a treatment regimen.
For example, if the patient knows they struggle with adhering to a medication schedule, failing to offer them an alternative to complicated medications may lead to incomplete treatment. Similarly, failing to get patient permission before performing an injection on someone with a phobia of needles might create unnecessary stress and trauma around their treatment. That is why performing healthcare treatments without informed consent outside of specific emergencies is considered medical malpractice.
What to Do If Your Consent Has Been Violated
If you suspect a violation of your medical consent, start by documenting everything. Gather and keep detailed records of your relevant medical visits, with names of the healthcare staff you interacted with, notes on the treatments you were offered and received, and how the suspected violation occurred. Seek a second opinion from another healthcare provider to better assess the extent of the harm caused to you by this violation of your rights. Finally, consult with a medical malpractice attorney to discuss exactly what claim to file and better understand the legal process.
Seek Legal Counsel for Medical Malpractice and Consent Violations
Understanding how consent works should help you better understand what your healthcare team requires of you in different situations. Understanding the importance of informed consent should help you be more proactive about your medical rights, asking questions to make better decisions. Staying on top of healthcare laws can also be beneficial to you in the future, as technological advancements in healthcare cause the nature of patient autonomy to evolve.If you have already had your medical consent violated, you may have grounds for a medical malpractice claim in Los Angeles. We encourage you to discuss your concerns with the professionals at the Law Offices of Michael Oran, APC, to discover how you can take action against the practitioners who harmed you.
