Presentation on theme: "Mental Capacity, Informed Consent & Health Care Treatment Dallas Bar Association Health Law Section February 15, 2012 Robert Gordon JD, PhD Forensic &"— Presentation transcript:
1Mental Capacity, Informed Consent & Health Care Treatment Dallas Bar Association Health Law Section February 15, 2012Robert Gordon JD, PhDForensic & Clinical PsychologyOne Galleria Tower, Dallas
6It's not enough for you to merely sign your name or say "Yes It's not enough for you to merely sign your name or say "Yes." You must give informed consent. You need to be told about and understand many things before treatment begins, including:The name of the doctor performing the procedure and his qualificationsYour medical conditionThe purpose of the proposed procedureThe risks involvedAny alternative treatments or procedures and the risks involvedThe chances of the procedure's successThe expected recovery timeThe approximate cost of the procedure and whether it's likely covered by your health insuranceYou must also have a chance to ask the doctor questions and to talk things over with family if you want.
7ConsentThe Cornerstone of patient rights. AMA, Patient Bill of Rights.Consent must be:VoluntaryCompetentInformed
8Forms of Consent The Med Mal Witness VerballyIn writingOne’s actionsBy inference in emergency situationsTo prevent death or serious injury
9What is Informed Consent? Describes the recommended treatment or procedureExplains the risks and benefitsRefers to alternate treatments, risks and benefitsSays the likely result if no treatment givenForecasts the probability of success and definition of itExplains the length and challenges of recuperationDiscusses other relevant information
10Other Important Factors The law presumes a person is competent to consent to health care.The challenge comes:when the patient or family disagrees with treatment orWhen the patient refuses treatment
13Other Disclosures? Physician Owned Hospitals HealthGrades.com Law Suits and ComplaintsDrug Company PerksDrug Substitutes: Botox Cases- GR Allergan Inc.Qui Tam Cases
14Doctor As WitnessConrad Murray MD. No Informed Consent.
15Texas Administrative Code Title 25 Section 6.01 Texas Medical Disclosure PanelDecides the degree of disclosure required and the form of the disclosure3 attorneys6 physiciansFollowing its procedures creates a “rebuttable presumption” that everything was done properly.
17List B: Not Full Disclosure AnesthesiaCardiovascularDigestiveEarEyeIntegementary systemMale genital systemMaternity and intrauterineNervous systemRadiologyRespiratoryUrinary systemPsychiatricRadiation therapyEndoscopic surgeryPain Management procedures
18Age Minority: Inference Chapter 129. Texas Civil Remedies CodeYounger than 18.Minority continued after 18.
19Assessment of Older Adults ABA/ APA Handbook. 2008. 1. Cognitive Assessment2. Functional Assessment3. Psychiatric & EmotionalAssessment
20Diminished Capacity Age- Related Cognitive Decline Delirium, Dementia, Amnestic and other Cognitive DisordersMental retardation, schizophrenia and major depressive disorderMedical power of attorney
21Invalid Consent Patient doesn’t understand meaning of information Patient has been misledPatient has diminished capacity due to cognitive or emotional problemsPatient can’t physically give consentThis does not automatically mean there is incompetency to consent. An incompetent person may still refuse treatment- e.g. meds. Incompetency and capacity can be different.
22Consent Issues Is there a legal guardian? Informally, does the patient’s family agree?Are there other legal, moral and ethical issues for competency and guardianship?Organ transplant issues- relationship between the donor and patientEmancipated minors and exceptionsChild’s life in danger. Parent refuses consent.
23Malpractice Law Suits Personal Injury Lawyers Advertising for Clients Doctor Patient RelationshipsLawsuit Clearing House InterviewsThe Med Mal Insurance QuestionCaps on Punitive and IntangiblesFine Print Allegation
24Defenses & Standards Defenses Standard of Care Known risk UnforseeabilityMistakes vs. NegligencePatient refuses to participate in explanationStandard of CareCommunity standardProfessional standardReasonably prudent patient
25Doctor As Witness Deposition and Trial / Informed Consent The Image of Health Care ProfessionalsWhose The Audience?The Jury TrialWho Has the Right to Settle?One’s Good NameThe Fear Factor
26Material Risks and Success One that might cause a reasonable patient not to proceedWhat’s the magnitude of the risk?Problem areas: Plastic surgery and vasectomies
27Assessment of Older Adults ABA/ APA HandbookFunctional AssessmentCognitive AssessmentPsychiatric & Emotional Assessment