Transcript INFORMED CONSENT - Disability Rights California

INFORMED CONSENT/
MEDICAL TREATMENT
Principles of liberty, selfdetermination, and autonomy
support requirements of informed
consent.
The Elements of Consent
 Consent must be made knowingly—
consumers must be provided with
information
 Consent needs to be given freely—
consumers must not be exposed to
duress or coercion
 Consent requires capacity—consumers
need to understand the nature and the
consequences of the proposed treatment
The Nature of Consent
 CONSENT MAY BE:
*EXPRESS (ORAL OR WRITTEN)
*IMPLIED (VOLUNTARY SUBMISSION
TO THE PROCEDURE)
Express consent should be obtained
whenever possible….
Title 22
 The California Code of Regulations
requires that written informed consent
must be obtained in certain
circumstances.
 See sections 70223(d)(3), 70749,
70527(d), and 71549
 www.calregs.com
Duration of Consent
 Continuing force and effect until the
consumer revokes the consent or until
circumstances change so as to materially
affect the nature of, or the risks of, the
procedure and/or the alternatives to the
procedure to which the consumer
consented. See Consent Manual 2004
(located in the library of all regional
offices)
State Law Requirements
 Health and Safety Code Section 1259
requires licensed general acute care
hospitals to adopt and annually review a
policy for providing language assistance
services to individuals with “language or
communication barriers.”
Language and
Communication Barriers
 “Language or communication barriers”
means:
barriers experienced by individuals with
limited English proficiency or nonEnglish-speaking individuals who speak
the same primary language and who
comprise at least 5% of the population of
the geographical area served by the
hospital or the actual population of the
hospital or barriers experienced by
individuals who sign.
Federal Requirements
 Hospitals must provide interpreters and
other aids for persons with hearing,
vision, or speech impairments. 45 C.F.R.
Section 84.52(d).
Culture and Language
 When the barrier is one of culture or
language, the Culturally and Linguistically
Appropriate Services Standards [65 Fed.
Reg. 80865 (Dec. 22, 2000)] and the
Limited English Proficiency Policy
Guidance [68 Fed. Reg. 47311 (Aug 8,
2003), 68 Fed. Reg. 70016 (Dec. 16,
2003)] mandate certain actions.
Limited English
Proficiency (LEP)
 Title VI of the Civil Rights Act of 1964
prohibits discrimination based upon
national origin. Title VI and the
implementing regulations require that
recipients of federal financial assistance
take reasonable steps to ensure
meaningful access by LEP persons.
Who May Give Consent
 Adults with capacity to make health care
decisions. [Probate Code Section 4670].
Generally, it may be presumed that a
person presenting himself or herself for
treatment has the capacity to make
health care decisions unless there is
evidence to the contrary. [Probate Code
Section 4657].
Cont.
 Adults who have executed a power of
attorney for health care or appointed a
surrogate. [Probate Code Section 4671].
The power of attorney for health care
may authorize another person, called an
agent, to make health care decisions on
behalf of the person.
Cont.
 Adults under conservatorship may be
able to make health care decisions. The
determination of who may make health
care decisions—the consumer or the
conservator--will depend on whether or
not the consumer has been adjudicated
to lack the capacity to make the health
care decisions. The Letters of
Conservatorship must be examined to
determine who has authority.
Developmental Disabilities
 Consumers with developmental
disabilities should not be presumed
incompetent to make medical treatment
decisions. If an adult with a
developmental disability is determined
incompetent, consent may be provided
by the consumer’s agent, conservator,
closest available relative, or court order.
Regional Center
Authorization
 The director of a regional center or his or
her designee may consent to medical,
dental and surgical treatment for a
consumer in certain circumstances.
[Welfare and Institutions Code Section
4655].
Family Members
 The California Supreme Court has determined
that in some cases it is appropriate for a
relative to give consent. [Cobbs v. Grant, 8
Cal.3d 229, 244 (1972)].
 A California Appellate Court subsequently
determined that a decision by family members
must be guided by the individual’s own desires
and feelings and guided by the individual’s best
interest. [Barber v. Superior Court, 147 Cal.
App.3d 1006 (1983)].
Domestic Partners
 Family Code Section 297 permits
persons to register as domestic partners.
Domestic partners are “two adults who
have chosen to share one another’s lives
in an intimate and committed relationship
of mutual caring.”
Authority of Domestic
Partner
 Probate Code Section 4716 provides that
a registered domestic partner has the
same authority to make a health care
decision for his or her incapacitated
domestic partner as a spouse would
have to make a health care decision for
his or her incapacitated spouse.
Minors
 Because of their legal status, minors are
generally considered to lack capacity to
give consent. However, courts and
legislative bodies have recognized that
minors may have an interest in making
decisions that affect them directly. Under
certain circumstances, minors may be
treated like adults for purposes of giving
consent. [California Family Code].
Brief History
 1953—unmarried pregnant minors given
the authority to consent to treatment
related to their reproductive care.
 1961—minors on active duty and those
who were married, divorced, or widowed
given the right to consent to medical
treatment.
 By 1970—rights of minors broadened to
include persons 15 years or older, living
away from home, and managing his/her
Factors to Consider
 Has the minor achieved an
“emancipated” status?
 Is the minor seeking treatment for a
statutorily specified medical need?
 Is there some other specialized situation
recognized by the law in which parental
consent is not required?
 See California Family Code for detailed
exceptions.
Minors in Custody of
Juvenile Court
 Minors in the juvenile system may be
either:
**a dependent child
pursuant to Welfare and Institutions Code
Section 300 (a child in danger of abuse
or neglect) or
**a ward pursuant to Welfare and
Institutions Code Section 601 or 602 (a
truant or child who has committed a
crime)
Court Authority
 The court may order medical treatment
for a minor who is the subject of a
petition for dependent child or ward
status if the parent/guardian or any other
person who is authorized to consent is
unwilling or unable to consent to
treatment and a written recommendation
for treatment has been obtained from a
physician. [Welfare and Institutions Code
Sections 369(b) and 739(b)].
Minors in Custody of Social
Worker or Probation Officer
 The juvenile court will order that the
social worker or probation officer be
given the power to authorize medical
treatment as necessary only when the
parent, guardian, or other person
authorized to consent is unwilling or
unable to authorize medical treatment.
[Welfare and Institutions Code Section
369(c) and 739(c)].
 See W & I for additional details.
Minors in Custody of
Foster Parents
 The right of a foster parent to consent to
treatment depends upon whether the
child has been placed by court order or
with the consent of the child’s legal
custodians, or on a temporary basis
before a detention hearing.
Ordinary Medical and
Dental Care
 Licensed foster care providers may
consent to ordinary medical and dental
treatment for a minor placed with them
pursuant to court order or with the
voluntary consent of the person(s) having
legal custody. Ordinary medical and
dental may include physical
examinations, x-rays, and immunizations.
[Health and Safety Code Section 1530.6].
Temporary Custody
 Foster parents who have custody of a
chid on a temporary basis prior to a
detention hearing and court ordered
placement do not have the same
authority. They do not have the right to
consent to medical treatment for the
child.
 Written evidence of the foster parent’s
authority should be obtained and placed
in the child’s medical record and our
office file before making
Guardian Consent
 The ability of a guardian to consent to
medical treatment depends on the
specific authority granted by the court.
 A certified copy of the Letters of
Guardianship should be obtained and
reviewed before recommendations are
made about the authority of the guardian
to consent to treatment.
 See California Probate Code for details.
Limitations






GUARDIANS CONSENT INSUFFICIENT FOR:
Psychosurgery
Convulsive Treatment
Sterilization
Experimental Drugs
Other Situations When Minor Has Authority To
Consent Or Refuse Treatment (See California
Family Code)
Analysis of Informed
Consent Questions
 The orientation material that you have just
reviewed is intended to provide background
information related to questions of informed
consent.
 The questions/issues that come up during
intake or on a regular basis, while you are
working on cases, can be complex and involve
multiple parties. The analysis needs to be
thoughtful and comprehensive. The support of
your supervisor may be required.