INFORMED CONSENT/ MEDICAL TREATMENT

1. INFORMED CONSENT/ MEDICAL TREATMENT Principles of liberty, self-determination, and autonomy support requirements of informed consent.

2. 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

3. The Nature of Consent • CONSENT MAY BE: *EXPRESS (ORAL OR WRITTEN) *IMPLIED (VOLUNTARY SUBMISSION TO THE PROCEDURE) Express consent should be obtained whenever possible….

4. 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

5. 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)

6. 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.”

7. Language and Communication Barriers • “Language or communication barriers” means: barriers experienced by individuals with limited English proficiency or non-English-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.

8. 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).

9. 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.

10. 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.

11. 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].

12. 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.

13. 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.

14. 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.

15. 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].

16. 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)].

17. 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.”

18. 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.

19. 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].

20. 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 own finances.

21. 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.

22. 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)

23. 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)].

24. 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.

25. 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.

26. 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].

27. 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 recommendations.

28. 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.

29. 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)

30. 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.