Informed consent not always necessary
Physicians generally must obtain informed consent from their patients, unless an exception to the informed consent doctrine applies.
"There are two types of situations where courts have held doctors are not required to provide informed consent to their patients," says Samantha L. Prokop, Esq., an attorney at Brennan, Manna & Diamond in Akron, OH. "The first exception can be broadly characterized as implied consent’ or emergency’ cases."
It is generally recognized that in emergency situations in which immediate action is necessary for the protection of life, consent will be implied when it is impractical to obtain actual consent from a patient or the patient’s authorized representative, she explains.1 "Even in these situations, some courts have required that physicians attempt to obtain the consent of one of the patient’s family members, if possible," cautions Prokop.2 "One must be careful not to push the emergency exception too far."
In one case, an emergency physician intubated an asthmatic over her forceful objections, because in his professional opinion, the patient was subject to a life-threatening situation.3 "The court held that a competent patient’s refusal to consent to medical treatment cannot be overridden, even when the patient faces a life-threatening situation," says Prokop.
Physician’s privilege
The second exception, sometimes referred to as a physician’s privilege, allows the physician to withhold some material information from the patient if the disclosure would pose an actual threat to the condition of the patient.
"It is recognized that patients occasionally become so ill or emotionally distraught on disclosure as to foreclose a rational decision, or complicate or hinder the treatment, or perhaps even pose psychological damage to the patient," says Prokop.
Physicians must be careful not to over-reach with the "privilege" exception, cautions Prokop. In a 2002 case, a defendant psychiatrist asserted this privilege and claimed he never told his patients about the risk of neuroleptic malignant syndrome as a side effect of antipsychotic medication because he didn’t want to concern them.4 "The court stated that the exercise of this privilege must be based on specific considerations in the individual patient’s case, and the practitioner must be able to identify those considerations," says Prokop.
References
- Stewart-Graves v. Vaughn, 162 Wash. 2d 115, 123, 170 P.3d 1151, 1155 (2007).
- Canterbury v. Spence, 464 F.2d 772, 789 (D.C. Cir. 1972).
- Shine v. Vega, 429 Mass. 456, 457-467, 709 N.E.2d 58, 59-65 (1999).
- Barcai v. Betwee, 98 Haw. 470, 487, 50 P.3d 946, 963 (2002).
