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Informed Consent

Directly related to people’s right to make decisions about their medical care is the fact that their ability to make such decisions may be limited by the amount of information they have received regarding their choices or alternatives. Therefore, virtually all states have recognized, either by express statute or common law, their right to receive information about their medical condition and treatment choices, in plain language terms that they can understand, and in sufficient amounts such that they are able to make an “informed” decision about their health care.

People have a right to know what their diagnosis is, and the doctor generally cannot refrain from advising them of the true nature of their condition. A doctor may temporarily withhold some information if the doctor believes in good faith that their condition will be substantially worsened by the knowledge of their diagnosis (referred to as “therapeutic privilege”). Also, doctors may have privilege to withhold certain diagnoses or records of mental conditions, if the disclosure of such information would create a risk of harm to patients or others. Although patients generally have a right to review their medical records, doctors may substitute “summary reports” or summary statements under circumstances of limited disclosure.

Before individuals consent to any treatment for a condition, they should receive, at a minimum, an explanation of their health problem, the treatment options available to them (including any standard treatments not available through their particular health care provider), the pros and cons of the various treatment choices, and the expected prognosis or consequence associated with each. If they have received this information, any consent to treatment that they subsequently give will be presumed to be an “informed consent.”

During medical emergencies, doctors are not required to obtain permission to save individuals’ lives or end the emergency, in the absence of any advance directive from patients notified them of. Also, patient consent for routine treatments or procedures such as having blood drawn or providing a urine sample, is presumed by the fact that the patients have solicited a medical assessment and diagnosis from their doctors. On the other hand, their consent cannot be “informed” if they are intoxicated, under chemical influence of drugs or medicine, or (sometimes) in extreme pain or quasi-conscious; the law will presume that their judgment or consent was impaired under those circumstances. A doctor who fails to obtain an informed consent for non-emergency treatment or care may be charged with a criminal offense.

If individuals are incapacitated and have executed an advance directive, their attorneys in fact must consent to their treatment (durable power of attorney) and/or the health care provider must treat them in a manner consistent with their declared wishes (living will).

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