Implied Consent: The Lie That Steals

Article posted with permission from the author, Suzanne Hamner.

Disclaimer: This is for informational and educational purposes only and does not constitute legal or medical advice. If you need legal advice, please contact an attorney. For medical advice, please contact your physician.

Implied consent is the lie that steals and keeps on stealing. This is an ideology in society that benefits members of the medical profession by affording strong legal protections against liability. Regardless of any eventual patient outcome, if it is assumed the patient would have consented to the procedure, treatment, etc., the medical professional would not be held liable. As we have seen, this is a dangerous ideological precedent that can have dire consequences. One of which is stealing patient rights.

In Informed Consent: An Unalienable Right, implied consent was briefly discussed. However, after the jury decided in favor of the defendant in Schara V. Ascension Health and the judge in the case indicated there was “implied consent” by virtue of being admitted to the hospital, it is important for the public to thoroughly understand this ideology pervading the medical system providing medical professionals with legal protection from liability. As seen in the Schara V. Ascension Health case, the judge used “implied consent” ideology to negate a claim of battery against the defendants. But, the judge erred in application of implied consent, which gained popularity in the 1970s with state and local law enforcement as a condition of issuance of a driver’s license and driving “privilege” in order to combat driving while intoxicated or using substances that alter one’s mental status when operating a motor vehicle.

So, what is “implied consent” in healthcare, according to the legal system? Implied consent is based upon the “reasonable man” standard which tempers obtaining proper informed consent during a life-threatening emergency. In other words, it is assuming an individual who is unconscious would consent to emergency treatment if that individual were conscious and able to consent. This would be in a situation where the individual suffers injuries as a result of an accident or a serious health condition where, in both cases, the individual is unconscious when presented to medical personnel. What is considered an emergency varies by each individual state. Some states restrict the definition to threat of loss of life or limb while some states include serious permanent injury in the definition. This is only one situation where the legal system recognizes “implied consent”. However, the declaration of a “pandemic” would not constitute an emergency that would expand implied consent beyond the recognized “standard”. And, in the case of life-threatening emergency, the patient is unconscious, cannot provide consent, and has no other individual available to provide consent. Note the emergency is of an individual nature, not a public one.

The second situation where the legal system recognizes implied consent is when a patient’s actions indicate consent. The example usually cited by legal eagles is scheduling to receive a vaccination and then showing up to the clinic to receive it. This is cited as implied consent. While this may be some type of legal caveat to convey liability protection, years spent in the medical profession deems this ideology unethical. The reason is multifaceted.

First, the individual has voluntarily initiated to receive a treatment – the vaccination. Second, before the vaccination (a medical treatment or procedure) is given, the individual is required to give consent either verbally or in writing AFTER being given information regarding the specific treatment – the vaccine. If the individual has not seen a physician to discuss vaccination, it is required, usually by law, that the administrator of the treatment (vaccine) provide information regarding the treatment (vaccine). If the individual has seen a physician to discuss vaccination, it is required, usually by law, that the administrator of the treatment (vaccine) CONFIRM the individual has received the information regarding the treatment (vaccine) to consent to receipt of that treatment – either verbally or in writing. In the case of verbal confirmation in any of these two scenarios, the administrator should document how the consent was received.

In the case of presentation to a physician’s office, the decision to see the physician is initiated by the individual. Upon arrival to the office, the individual agrees, by virtue of scheduling an appointment, to basic services – vital signs, a physical examination, and receipt of a diagnosis, which may include diagnostic tests. If treatment is needed, the physician may tender the individual a medication prescription or recommend actions for the patient based on the assessment and diagnosis. The patient then decides whether or not to engage in receiving treatment (medication or other recommended actions) based upon informed consent. If you are seeing the physician for the first time, you may be required to sign a consent form indicating you consent to be assessed and diagnosed. This consent is usually carried forward at subsequent visits. However, the individual can still refuse to receive any or all of these basic services at any point in time. The refusal is documented, and the physician may engage the individual in further discussion regarding consequences of refusing treatment – proper informed consent.

When presenting to a hospital emergency department, the conscious individual is required to sign a consent form. This consent applies to basic services in the emergency department – vital signs, physical examination, possible intravenous access for fluids, and receipt of a diagnosis, which may include diagnostic tests. If treatment is needed, the individual’s informed consent is required. However, the individual can still refuse to receive any or all of these services at any point in time. The refusal is required to be documented and would prompt the physician to engage the patient in further discussion regarding consequences of refusal. Again, this is proper informed consent.

If the physician, private or emergency room, determines hospital admission is necessary. The individual has to consent to be admitted. At that point, additional documentation is required for admission. However, the individual retains the right to refuse any portion of prescribed treatment at any time. Example: if the doctor orders a complete blood chemistry profile along with arterial blood gases (ABGs), the individual can choose to receive all, refuse all, or receive or refuse either the complete blood chemistry profile or the ABGs. This would also apply to any other invasive procedures. The refusal can be verbal, and personnel are required to document this refusal, which triggers the physician to engage the patient in further discussion for proper informed consent.

Remember, legally, the law will allow legal protection for certain invasive procedures, such as blood draws, intravenous access, foley catheters or vaccines, to be performed by medical personnel IF after these procedures are explained you do not voice refusal.

The individual can refuse hospitalization, which triggers leaving “against medical advice”. This will be covered separately.

In the case of surgical treatment or invasive diagnostic procedure, a specific informed consent form is required to be signed by the patient or individual acting on behalf of the patient. This consent form, if signed by the patient, has to be signed BEFORE the patient is given any type of pre-operative medication or pre-diagnostic sedative, if warranted for the diagnostic procedure, that impairs mental capacity.

What if, after receiving the pre-operative or pre-diagnostic medication, the individual recants verbally the consent to receive the surgery or diagnostic procedure? Ethically, and in most cases legally, this has to be reported to the supervisor and the physician, with all actions documented, and preparations for the procedure ceased. Why? The patient, even under effects of pre-operative or pre-diagnostic medication that does not impair memory, such as amnesic medications, can refuse at any time; but, the patient would not be considered ethically or legally capable of providing informed consent, verbally or in writing, to reverse the refusal. The exception to this would be a patient who is mentally incapable of making healthcare decisions on their own behalf, by virtue of court determination or health condition, such as dementia, and has an individual who is acting on behalf of the patient.

Clearly, implied consent is limited in its scope. However, the law extends this consent to certain invasive procedures when the patient does not indicate a verbal refusal. It does not provide medical professionals or a facility “carte blanche”. And it does not provide legal protection from negligence, malpractice or assault and battery. However, implied consent is being used, and has been used, to steal rights from the individual and protect violators.

No one would knowingly consent, implied or informed, to be administered any medication that violated the five rights of medication administration – right drug, right dosage, right time, right patient, right route. It is the responsibility of the doctor and nurse, and sometimes the pharmacist, to ensure that medication dosages are within acceptable parameters, not to exceed dosage limitations, which could lead to patient harm. Moreover, when administering multiple medications, nurses and doctors are responsible for knowing medications that are in contradiction with one another (should not be administer concurrently – together), could result in synergistic effects, or could cancel the effects of one of the medications. And, every floor in the hospital should have a drug reference that can be accessed to verify if certain medications are contraindicated to be given together. With the checks and balances that should exist in the medication administration procedures, a pharmacist or nurse should question dosages that exceed the recommendations in the drug reference guide and refuse to administer medications that are contraindicated or exceed recommended dosage limitations until conferring with the physician. If, after conferring with the physician, the nurse or pharmacist is wary of the order, it should be reported up the chain in the hospital facility – charge nurse, head floor nurse, supervisor, director of nursing, hospital administrator. If these measures fail to stop an excessive dosage of medication or administration of multiple medications that are contraindicated to be given together, ethically, the nurse has the responsibility to refuse to administer.

What if the checks and balances fail? This is something family members or the patient may not know when the hospital personnel enter the room to administer medication. It is important for patients and families to know what medication is or medications are being given and the dosage for each. Hospital personnel should inform patients and family members what medications are being given, the dosage of each medication, and why the medications are being administered. Patients and families should be allowed to ask questions, receive information regarding the medication and proper dosages, and the ability to refuse. There is no implied consent in this situation.

Specifically, there is no “implied consent” to a Do Not Resuscitate (DNR) order. This type of medical intervention is specific in its determination. Cardiopulmonary resuscitation (CPR) is an intervention used to prevent sudden, unexpected death. There are scenarios where CPR or resuscitation efforts are not indicated – case of irreversible terminal illness where death is not unexpected or where prolonged cardiac arrest dictates the futility of resuscitation efforts.

In the hospital setting, a Do Not Resuscitate (DNR) order has to be written and signed by the physician AFTER the physician discusses with the patient and/or family members a do not resuscitate order based on terminal irreversible illness where death is expected and an agreement is reached regarding no resuscitation. It is required for the informed consent to be documented by the physician in the patient’s medical record. For the DNR to be valid, informed consent must be documented, the order must be written, and it must be signed by the physician. One of these elements missing constitutes an invalid DNR order that should not be followed.

In the case of a “verbal order” by the doctor for a DNR, the nurse should write the order in the patient’s chart and have the physician sign as soon as possible. The order for DNR is NOT valid until the physician signs it; therefore, the order should not be followed until signed and full documentation verified.

At times, what constitutes a “premature” DNR order will occur. In this case, nurses have a legal responsibility to question the order, document the reason for questioning the order, talk with the physician and request clarification for the order. Failure to do so constitutes negligence on the part of the nurse. If the physician’s reasoning is sound, the nurse can proceed to follow the order. If the physician refuses to discuss the order or the reasoning is questionable, the nurse must document this and pursue the matter higher up with hospital authorities. The nurse has the responsibility to initiate resuscitation efforts until the matter is resolved. If the nurse does not recognize a “premature” DNR order but the patient and family members do and request the nurse initiate resuscitation efforts, the nurse is legally obligated to do so.

What if the DNR order has followed all the appropriate measures – informed consent and proper documentation – and the patient or family decides at the last minute (as the patient is in active dying process) to rescind the DNR? Even if the withdrawal of informed consent is verbal, the nurse is obligated legally to initiate resuscitation efforts, while other staff members contact the physician and hospital administration. If the patient has a designated health care advocate through a power of attorney and that individual is contacted by phone via a family member sitting with the patient, the verbal phone withdrawal of informed consent by the healthcare advocate is sufficient to initiate resuscitation efforts. It is better to err on the side of preserving life.

Despite ethics and law, there are times when illegal documentation occurs. A general rule of thumb followed by medical professionals is “if it isn’t documented, it wasn’t done.” Certain documentation would occur after the fact to “cover” negligence, malpractice or other criminality. Sometimes it is easy to spot in a “paper” record but more difficult in an electronic one. Other times, not so much. It takes an expert in forensics to cast doubt on documentation.

Going back to the Schara V. Ascension Health case and the decision. The assertion of “implied consent” was applied inappropriately. It seems the judge, nor the jury fully understood the limitation of implied consent. Moreover, the diagnosis of COVID-19 has not been indicated as a terminal irreversible illness where death is expected thereby rendering the initiation of the DNR order premature. Obviously, the jury did not understand this caveat of DNR, and neither did the judge. The family nor the patient were afforded proper informed consent in all procedures, specifically medication administration regarding dosages and contraindications. A reasonable person would not consent to dosages higher than recommended nor concurrent administration of medications that are contraindicated to be given together. In the scenario where the hospital personnel claimed the patient gave consent when the health care advocate indicated being present at all times and the advocate disputed their claim, the judge and jury should have given more credence to the advocate because of the health care power of attorney – the ability of an advocate to make decisions on behalf of the patient. The hospital personnel did not honor the power of attorney in full.

Other problems with the case existed, but only implied consent and the DNR issue is covered.

It is important to fully understand your rights when it comes to health care. And, it is important to understand the rights of patients, the responsibilities of health care professionals, and the ethics involved when called to serve on a jury in these type cases. Without fully understanding informed consent and implied consent, the false ideology of implied consent can continue to be used to steal.

Resources:

https://lewisinjuryfirm.com/what-is-implied-consent-in-healthcare/

https://wilsonlaw.com/blog/difference-between-express-and-implied-consent/

https://biotech.law.lsu.edu/books/aspen/Aspen-THE-11.html

Creighton, H. (1986). Law Every Nurse Should Know, Fifth Edition. W. B. Saunders Company.

Sloan, G. (1991). Nursing and Malpractice Risks: Understanding the Law. Western Schools, Inc.

Article posted with permission from Sons of Liberty Media