Patient Autonomy and Informed Consent

Begin reading at Law, p 82 (we covered the ethical issues in the Ethics text). Bottom of p 82 the book talks about these torts: “assault, battery, false imprisonment, negligence with regard to lack of informed consent.” For a list of differences between torts and crimes:

Definitions: Tort: a civil wrong for which the law provides a remedy Tort Action: plaintiff filing to recover damages for personal injury or property damage occurring from negligent conduct or intentional misconduct

For imaging professionals the following torts are most common: Intentional Tort: assault battery false imprisonment Defamation (for Ch. 5, on truthfulness) Unintentional Tort: Negligence (covered in Ch. 2) failure to obtain informed consent breach of patient confidentiality (covered in Ch. 2)

Intentional Torts: Assault: deliberate act which threatens harm to another person without consent, and victim perceives other’s ability to carry out threat Battery: touching to which the other has not consented even if the touching may benefit other

Intentional Torts: Assault and Battery are a concern especially when restraints are used in imaging The book uses the term medical immobilization to distinguish restraint with and without consent Medical immobilization without consent is restraint When restraint is required, imaging professionals should be able to justify it using the following 4 criteria:

Legal Criteria for Use of Restraint (from Box 4.4, top of p84): 1. Touching or restraining to which the patient has not consented is needed to protect the patient, health care members, or the property of others 2. The restraint used is the least intrusive method possible 3. Regular reassessment of the need to restrain occurs 4. The restraint is discontinued as soon as practicable When dealing with children, it would be important to make parents aware that you are guided by those criteria

Law, p84: False Imprisonment = Unlawful confinement within a fixed area Confined must be aware of confinement Confined must be harmed by confinement The book says “Even if the health care provider does not intend harm, these allegations can be made if the patient perceives the acts to be done with the intent of harm.” – Law p 84 Note that intent is not part of the definition of false imprisonment above, and so the quotation above doesn’t make sense. Is intent to harm part of false imprisonment or not? Google ‘false imprisonment’; law sites don’t mention it in their definitions.

Informed Consent: Case law governing informed consent was established in these 2 cases: 1952, Salgo v Leland Stanford Jr. University Board of Trustees 1972, Canterbury v Spence All 50 states now require informed consent

There are 2 exceptions to the requirement for informed consent: Emergencies Therapeutic Privilege

In general, to prove lack of informed consent, a plaintiff must show: 1. A material risk existed that was unknown to the patient 2. The risk was not disclosed 3. Disclosure would have led a reasonable patient to reject treatment or seek other course 4. Patient was injured by lack of disclosure Note that the details of your particular hospital or clinic standard of care, local statutes, professional standards, etc., will play a role in determining disclosure requirements

Informed Consent Law: 2 points: Nearly all states impose the duty of obtaining informed consent on physicians only Some have tried to impose the duty on hospitals The book says imposing the duty to obtain informed consent on hospitals has met with “limited success”; you should find out who has that duty when you find a job

Read p 86, Pauscher v Iowa Methodist Medical Center (for an example of an informed consent action that failed) Keel v St. Elizabeth Medical Center (for an action that succeeded)

Review: Elements of Informed Consent (p 87 Box 4-5) Note the final element: Consent to treat a minor patient is usually given by a parent or guardian, but if the minor patient is at least 7 years old, he or she should be included in the decision-making process That introduces the question of how to approach children

On p 88, second paragraph, the book notes 2 concepts the American Academy of Pediatrics recognizes regarding children: In most cases physicians have a moral and legal duty to obtain parental permission to treat a minor In the case of emancipated minors (age 14 to 18, legally not living with parent or guardian) or mature minors with adequate decision-making capacity, consent should be obtained directly from patient