Patients' Rights - Exceptions to need for Consent

Emergency Situation

When a patient is unable to give consent, and A) a delay in treatment would be life threatening or cause the patient serious harm, B) no close family member or surrogate is availabe to give consent on behalf of the patient, and C) the physician has no evidence to suggest that the patient would oppose the treatment, consent is implied by law. The physician should record the emergency situation, course of action to attempt to obtain consent, and procedures performed in the chart.

Legal mandate

In unusual circumstances, a legal guardian with health care power of attorney, or a court with proper jurisdiction may order treatment of a patient against that patient's will. These situations usually arise when some treatment is mandated under public health laws. Although a patient cannot refuse treatment in these uncommon situations, legal experts suggest that the patient should be informed exactly what treatment is being undertaken. Statutory consent is a related situation where state statutes imply authorization for a test. For example, certain states have statutes protecting physicians from liability for assault and battery when a police officer requests a blood sample be drawn from a person charged with drunk driving. The implied consent in this case occurred when the driver was issued his or her driver's license. That is, the driver accepted the rules of the State, including being tested for alcohol intoxication when he or she accepted the driver's license.

Therapeutic privilege

Until recently, it was not uncommon for information to be witheld from a patient if a physician felt that the information would be injurious or upsetting to the patient. This was most common when treating diseases such as cancer and is known as therapeutic privilege or therapeutic exception. Today, with the demise of paternalism in modern medicine, therapeutic privilege is invoked less and less. Further, it has been argued that if a physician feels that information may be so upsetting to a patient as to cause psychological harm, that patient is not competent to consent to treatment and perhaps a guardian should be appointed to make health care decisions.

Implied consent

For example, a patient who presents himself or herself to the physician and holds out his or her arm gives implied consent that it is OK to check his or her blood pressure or to deliver a vaccine.