INFORMED CONSENT/ MEDICAL TREATMENT Principles of liberty, self- determination, and autonomy support requirements of informed consent.

INFORMED CONSENT/ INFORMED CONSENT/ MEDICAL TREATMENTMEDICAL TREATMENT

Principles of liberty, self-Principles of liberty, self-determination, and autonomy determination, and autonomy support requirements of informed support requirements of informed consent.consent.

The Elements of ConsentThe Elements of Consent

Consent must be made knowingly—Consent must be made knowingly—consumers must be provided with consumers must be provided with information information

Consent needs to be given freely—Consent needs to be given freely—consumers must not be exposed to duress consumers must not be exposed to duress or coercionor coercion

Consent requires capacity—consumers need Consent requires capacity—consumers need to understand the nature and the to understand the nature and the consequences of the proposed treatmentconsequences of the proposed treatment

The Nature of ConsentThe Nature of Consent

CONSENT MAY BE:CONSENT MAY BE:

*EXPRESS (ORAL OR WRITTEN)*EXPRESS (ORAL OR WRITTEN)

*IMPLIED (VOLUNTARY SUBMISSION *IMPLIED (VOLUNTARY SUBMISSION TO THE PROCEDURE)TO THE PROCEDURE)

Express consent should be obtained whenever Express consent should be obtained whenever possible….possible….

Title 22Title 22

The California Code of Regulations The California Code of Regulations requires that written informed consent requires that written informed consent must be obtained in certain must be obtained in certain circumstances.circumstances.

See sections 70223(d)(3), 70749, See sections 70223(d)(3), 70749, 70527(d), and 7154970527(d), and 71549

www.calregs.comwww.calregs.com

Duration of ConsentDuration of Consent

Continuing force and effect until the Continuing force and effect until the consumer revokes the consent or until consumer revokes the consent or until circumstances change so as to materially circumstances change so as to materially affect the nature of, or the risks of, the affect the nature of, or the risks of, the procedure and/or the alternatives to the procedure and/or the alternatives to the procedure to which the consumer procedure to which the consumer consented. consented. SeeSee Consent Manual 2004 Consent Manual 2004 (located in the library of all regional offices) (located in the library of all regional offices)

State Law RequirementsState Law Requirements

Health and Safety Code Section 1259 Health and Safety Code Section 1259 requires licensed general acute care requires licensed general acute care hospitals to adopt and annually review a hospitals to adopt and annually review a policy for providing language assistance policy for providing language assistance services to individuals with “language or services to individuals with “language or communication barriers.”communication barriers.”

Language and Language and Communication BarriersCommunication Barriers

““Language or communication barriers” Language or communication barriers” means: means: barriers experienced by individuals with barriers experienced by individuals with limited English proficiency or non-English-limited English proficiency or non-English-speaking individuals who speak the same speaking individuals who speak the same primary language and who comprise at least primary language and who comprise at least 5% of the population of the geographical area 5% of the population of the geographical area served by the hospital or the actual served by the hospital or the actual population of the hospital or barriers population of the hospital or barriers experienced by individuals who sign.experienced by individuals who sign.

Federal Requirements Federal Requirements

Hospitals must provide interpreters and Hospitals must provide interpreters and other aids for persons with hearing, other aids for persons with hearing, vision, or speech impairments. 45 C.F.R. vision, or speech impairments. 45 C.F.R. Section 84.52(d).Section 84.52(d).

Culture and LanguageCulture and Language

When the barrier is one of culture or When the barrier is one of culture or language, the Culturally and Linguistically language, the Culturally and Linguistically Appropriate Services Standards [65 Fed. Appropriate Services Standards [65 Fed. Reg. 80865 (Dec. 22, 2000)] and the Reg. 80865 (Dec. 22, 2000)] and the Limited English Proficiency Policy Limited English Proficiency Policy Guidance [68 Fed. Reg. 47311 (Aug 8, Guidance [68 Fed. Reg. 47311 (Aug 8, 2003), 68 Fed. Reg. 70016 (Dec. 16, 2003), 68 Fed. Reg. 70016 (Dec. 16, 2003)] mandate certain actions.2003)] mandate certain actions.

Limited English Limited English Proficiency (LEP)Proficiency (LEP)

Title VI of the Civil Rights Act of 1964 Title VI of the Civil Rights Act of 1964 prohibits discrimination based upon prohibits discrimination based upon national origin. Title VI and the national origin. Title VI and the implementing regulations require that implementing regulations require that recipients of federal financial assistance recipients of federal financial assistance take reasonable steps to ensure take reasonable steps to ensure meaningful access by LEP persons.meaningful access by LEP persons.

Who May Give ConsentWho May Give Consent

Adults with capacity to make health care Adults with capacity to make health care decisions. [Probate Code Section 4670]. decisions. [Probate Code Section 4670].

Generally, it may be presumed that a Generally, it may be presumed that a person presenting himself or herself for person presenting himself or herself for treatment has the capacity to make health treatment has the capacity to make health care decisions unless there is evidence to care decisions unless there is evidence to the contrary. [Probate Code Section 4657].the contrary. [Probate Code Section 4657].

Cont.Cont.

Adults who have executed a power of Adults who have executed a power of attorney for health care or appointed a attorney for health care or appointed a surrogate. [Probate Code Section 4671].surrogate. [Probate Code Section 4671].

The power of attorney for health care The power of attorney for health care may authorize another person, called an may authorize another person, called an agent, to make health care decisions on agent, to make health care decisions on behalf of the person.behalf of the person.

Cont.Cont.

Adults under conservatorship may be able to Adults under conservatorship may be able to make health care decisions. The make health care decisions. The determination of who may make health care determination of who may make health care decisions—the consumer or the conservator--decisions—the consumer or the conservator--will depend on whether or not the consumer will depend on whether or not the consumer has been adjudicated to lack the capacity to has been adjudicated to lack the capacity to make the health care decisions. The Letters make the health care decisions. The Letters of Conservatorship must be examined to of Conservatorship must be examined to determine who has authority. determine who has authority.

Developmental Developmental DisabilitiesDisabilities

Consumers with developmental Consumers with developmental disabilities should not be presumed disabilities should not be presumed incompetent to make medical treatment incompetent to make medical treatment decisions. If an adult with a decisions. If an adult with a developmental disability is determined developmental disability is determined incompetent, consent may be provided incompetent, consent may be provided by the consumer’s agent, conservator, by the consumer’s agent, conservator, closest available relative, or court order.closest available relative, or court order.

Regional Center Regional Center AuthorizationAuthorization

The director of a regional center or his or The director of a regional center or his or her designee may consent to medical, her designee may consent to medical, dental and surgical treatment for a dental and surgical treatment for a consumer in certain circumstances. consumer in certain circumstances. [Welfare and Institutions Code Section [Welfare and Institutions Code Section 4655].4655].

Family MembersFamily Members

The California Supreme Court has determined The California Supreme Court has determined that in some cases it is appropriate for a relative that in some cases it is appropriate for a relative to give consent. [Cobbs v. Grant, 8 Cal.3d 229, to give consent. [Cobbs v. Grant, 8 Cal.3d 229, 244 (1972)].244 (1972)].

A California Appellate Court subsequently A California Appellate Court subsequently determined that a decision by family members determined that a decision by family members must be guided by the individual’s own desires must be guided by the individual’s own desires and feelings and guided by the individual’s best and feelings and guided by the individual’s best interest. [Barber v. Superior Court, 147 Cal. interest. [Barber v. Superior Court, 147 Cal. App.3d 1006 (1983)].App.3d 1006 (1983)].

Domestic PartnersDomestic Partners

Family Code Section 297 permits Family Code Section 297 permits persons to register as domestic partners. persons to register as domestic partners. Domestic partners are “two adults who Domestic partners are “two adults who have chosen to share one another’s lives have chosen to share one another’s lives in an intimate and committed relationship in an intimate and committed relationship of mutual caring.” of mutual caring.”

Authority of Domestic Authority of Domestic PartnerPartner

Probate Code Section 4716 provides that Probate Code Section 4716 provides that a registered domestic partner has the a registered domestic partner has the same authority to make a health care same authority to make a health care decision for his or her incapacitated decision for his or her incapacitated domestic partner as a spouse would domestic partner as a spouse would have to make a health care decision for have to make a health care decision for his or her incapacitated spouse.his or her incapacitated spouse.

MinorsMinors

Because of their legal status, minors are Because of their legal status, minors are generally considered to lack capacity to generally considered to lack capacity to give consent. However, courts and give consent. However, courts and legislative bodies have recognized that legislative bodies have recognized that minors may have an interest in making minors may have an interest in making decisions that affect them directly. Under decisions that affect them directly. Under certain circumstances, minors may be certain circumstances, minors may be treated like adults for purposes of giving treated like adults for purposes of giving consent. [California Family Code].consent. [California Family Code].

Brief HistoryBrief History

1953—unmarried pregnant minors given the 1953—unmarried pregnant minors given the authority to consent to treatment related to authority to consent to treatment related to their reproductive care.their reproductive care.

1961—minors on active duty and those who 1961—minors on active duty and those who were married, divorced, or widowed given the were married, divorced, or widowed given the right to consent to medical treatment.right to consent to medical treatment.

By 1970—rights of minors broadened to By 1970—rights of minors broadened to include persons 15 years or older, living away include persons 15 years or older, living away from home, and managing his/her own from home, and managing his/her own finances.finances.

Factors to ConsiderFactors to Consider

Has the minor achieved an Has the minor achieved an “emancipated” status?“emancipated” status?

Is the minor seeking treatment for a Is the minor seeking treatment for a statutorily specified medical need?statutorily specified medical need?

Is there some other specialized situation Is there some other specialized situation recognized by the law in which parental recognized by the law in which parental consent is not required?consent is not required?

SeeSee California Family Code for detailed California Family Code for detailed exceptions.exceptions.

Minors in Custody of Minors in Custody of Juvenile CourtJuvenile Court

Minors in the juvenile system may be Minors in the juvenile system may be either:either: **a dependent child **a dependent child pursuant to Welfare and Institutions Code pursuant to Welfare and Institutions Code Section 300 (a child in danger of abuse or Section 300 (a child in danger of abuse or neglect) orneglect) or

**a ward pursuant to Welfare and **a ward pursuant to Welfare and Institutions Code Section 601 or 602 (a Institutions Code Section 601 or 602 (a truant or child who has committed a crime)truant or child who has committed a crime)

Court AuthorityCourt Authority

The court may order medical treatment for a The court may order medical treatment for a minor who is the subject of a petition for minor who is the subject of a petition for dependent child or ward status if the dependent child or ward status if the parent/guardian or any other person who is parent/guardian or any other person who is authorized to consent is unwilling or unable to authorized to consent is unwilling or unable to consent to treatment and a written consent to treatment and a written recommendation for treatment has been recommendation for treatment has been obtained from a physician. [Welfare and obtained from a physician. [Welfare and Institutions Code Sections 369(b) and 739(b)]. Institutions Code Sections 369(b) and 739(b)].

Minors in Custody of Social Minors in Custody of Social Worker or Probation OfficerWorker or Probation Officer

The juvenile court will order that the social The juvenile court will order that the social worker or probation officer be given the worker or probation officer be given the power to authorize medical treatment as power to authorize medical treatment as necessary only when the parent, guardian, or necessary only when the parent, guardian, or other person authorized to consent is other person authorized to consent is unwilling or unable to authorize medical unwilling or unable to authorize medical treatment. [Welfare and Institutions Code treatment. [Welfare and Institutions Code Section 369(c) and 739(c)].Section 369(c) and 739(c)].

SeeSee W & I for additional details. W & I for additional details.

Minors in Custody of Minors in Custody of Foster ParentsFoster Parents

The right of a foster parent to consent to The right of a foster parent to consent to treatment depends upon whether the treatment depends upon whether the child has been placed by court order or child has been placed by court order or with the consent of the child’s legal with the consent of the child’s legal custodians, or on a temporary basis custodians, or on a temporary basis before a detention hearing.before a detention hearing.

Ordinary Medical and Ordinary Medical and Dental CareDental Care

Licensed foster care providers may Licensed foster care providers may consent to ordinary medical and dental consent to ordinary medical and dental treatment for a minor placed with them treatment for a minor placed with them pursuant to court order or with the pursuant to court order or with the voluntary consent of the person(s) having voluntary consent of the person(s) having legal custody. Ordinary medical and dental legal custody. Ordinary medical and dental may include physical examinations, x-rays, may include physical examinations, x-rays, and immunizations. [Health and Safety and immunizations. [Health and Safety Code Section 1530.6]. Code Section 1530.6].

Temporary CustodyTemporary Custody

Foster parents who have custody of a chid Foster parents who have custody of a chid on a temporary basis prior to a detention on a temporary basis prior to a detention hearing and court ordered placement do not hearing and court ordered placement do not have the same authority. They do not have have the same authority. They do not have the right to consent to medical treatment for the right to consent to medical treatment for the child.the child.

Written evidence of the foster parent’s Written evidence of the foster parent’s authority should be obtained and placed in authority should be obtained and placed in the child’s medical record and our office file the child’s medical record and our office file before making recommendations.before making recommendations.

Guardian ConsentGuardian Consent

The ability of a guardian to consent to The ability of a guardian to consent to medical treatment depends on the specific medical treatment depends on the specific authority granted by the court.authority granted by the court.

A certified copy of the Letters of A certified copy of the Letters of Guardianship should be obtained and Guardianship should be obtained and reviewed before recommendations are made reviewed before recommendations are made about the authority of the guardian to consent about the authority of the guardian to consent to treatment.to treatment.

SeeSee California Probate Code for details. California Probate Code for details.

LimitationsLimitations

GUARDIANS CONSENT INSUFFICIENT FOR:GUARDIANS CONSENT INSUFFICIENT FOR: PsychosurgeryPsychosurgery Convulsive TreatmentConvulsive Treatment SterilizationSterilization Experimental DrugsExperimental Drugs Other Situations When Minor Has Authority To Other Situations When Minor Has Authority To

Consent Or Refuse Treatment (See California Consent Or Refuse Treatment (See California Family Code)Family Code)

Analysis of Informed Analysis of Informed Consent QuestionsConsent Questions

The orientation material that you have just The orientation material that you have just reviewed is intended to provide background reviewed is intended to provide background information related to questions of informed information related to questions of informed consent.consent.

The questions/issues that come up during intake The questions/issues that come up during intake or on a regular basis, while you are working on or on a regular basis, while you are working on cases, can be complex and involve multiple cases, can be complex and involve multiple parties. The analysis needs to be thoughtful and parties. The analysis needs to be thoughtful and comprehensive. The support of your supervisor comprehensive. The support of your supervisor may be required.may be required.