Understanding Informed Consent

Understanding Informed Consent

by Brette Sember, Esq., October 2016

When you need to receive medical care, your health care provider is required to obtain your informed consent before doing anything. As a patient, you want to have all the facts before you agree to any medical treatment, and informed consent law is designed to make sure this happens.

There are two exceptions:

  1. You don't need to provide medical consent for things that are considered routine and common—like a blood draw or having a doctor listen to your heart through a stethoscope.
  2. Informed consent for medical treatment also is not required in an emergency situation.

What Information Should You Receive?

You should be given the amount of information that a reasonable person would need to make an informed decision in the situation, so the provider does not have to give you hours and hours of details.

To get your properly informed consent for medical care, your health care provider should:

  • Inform you of all the potential risks and benefits of the treatment
  • Inform you of the potential risks of not receiving the treatment
  • Fully describe the treatment itself
  • Explain alternatives to the treatment and discuss your diagnosis

Only once you have been completely apprised of all of this information can you legally give consent for treatment.

Informed Consent Procedures

The actual paperwork required for a medical consent form varies by state, and sometimes by hospital or doctor.

When you are receiving care in a doctor's office, consent for treatment is normally oral; the doctor explains things to you and you say yes or no.

If you are undergoing a procedure or diagnostic testing that is serious or has a lot of risks, then you normally will be asked to sign medical consent forms.

The problem that arises is that the forms are usually long and are written in legalese, from a very general boilerplate with no details about your actual procedure, and with a lot of fine print. Almost no one reads them—particularly when they are ill or about to have surgery—so the forms don't really provide the information that's required for a legal informed consent.

Your doctor should orally give you all the information you need in order to understand your medical options and to provide an informed consent. If you don't feel you have enough information, ask. No one can proceed with anything until you agree, and if you don't have enough information, say so.

If you decide not to accept a procedure or treatment, you may be asked to sign an Against Medical Advice (AMA) form, stating that you have been given all the necessary information and have chosen not to do what the provider has recommended.

It doesn't matter whether or not your provider agrees with your choice. The point is that it is your choice to make.

Special Situations

When the person to receive treatment is a minor or is legally incompetent, a parent or guardian will have to give medical authorization. In some states, a teenager is allowed to make some medical decisions for him- or herself (such as a teenage girl's obtaining birth control).

If the patient does not speak English, some form of translation must be provided in order for that patient to be able to understand the information and provide informed consent.

A patient who would otherwise be competent but is presently not in control of their faculties—in a coma, having a breakdown, intoxicated, etc.—cannot give informed consent and a family member or designated health care proxy would need to give the consent.

There is also precedent to support a doctor's being a bit vague or unclear about scary details if the patient is emotionally upset and likely to refuse treatment unduly if those details are spelled out.

Failures to Receive Informed Consent

Every state has a law the requires patient consent for medical care. If the health care provider does not obtain informed consent, he or she can be legally liable for battery, negligence, and/or medical malpractice.

It doesn't matter if the procedure goes well or even cures the patient. Whether or not the patient suffered some kind of harm or distress, if the patient did not agree to the procedure or treatment after being fully informed, the health care provider did not have the right to do it.

If the doctor gave you some of the facts but not all—for example, leaving out the fact that you could be paralyzed by the surgery or that the surgery might not work at all—and you agreed based on those incomplete facts, you did not give an informed consent, and that provider could be liable.

Informed consent is the bedrock of trust in medical situations. Understanding your rights can help you feel comfortable and confident, and encourage you to ask questions and get all the information you need to make important medical decisions for you and your loved ones.

If you believe your informed consent rights were violated, you should speak to an attorney. He or she can help evaluate if you have a legal case worth pursuing. LegalZoom can put you in touch with an attorney who can answer your questions and provide the legal advice you need when you sign up for the personal legal plan. The personal legal plan provides unlimited 30-minute phone consultations on new legal matters, tax advice from a tax professional, legal document review up to 10 pages, and more for one low monthly fee.