AVOIDING LIABILITY BLOG

WHO CAN GIVE INFORMED CONSENT AND WHAT IS THE NURSE’S ROLE IN OBTAINING CONSENT FOR TREATMENT?

Nurses are often confused as to what their role is when obtaining consent for treatment.  In most employment settings, the employer has adopted a policy concerning the nurse’s role and when such a policy exists, it should be followed.  If questions arise about the policy, seeking information out from resources within the facility, including the nurse manager or the risk manager, is a good idea.

 

As you know from previous Bulletins, informed consent for treatment is essential in order to avoid allegations of assault and battery and other possible legal accusations.  What may not be as clear is who can give consent for treatment.

 

An adult 18 years of age and older can give consent for his or her own treatment, unless they have a guardian who is designated to provide consent for the individual.  Since there is a presumption of competency of all adults, including an elderly patient, when there is a question that the individual patient cannot give his or her consent for treatment, a judicial determination and/or a medical evaluation by a neurologist, psychiatrist or other specific health care providers must take place and be documented.  1  In short, incompetency cannot be presumed.

 

If a patient designates another to provide informed consent for him or her during a specific procedure, the employer’s policy should provide such a form and the patient can fill it out.  Or, a patient may come into your facility with a durable power of attorney for health care appointing someone, such as a daughter or husband, to provide consent.  Again, the policy should be consulted and followed.

 

A minor, someone who is 17 years and younger, is generally considered not competent to make informed consent decisions.  As a result, it is the minor’s parents who provide the informed consent for treatment.  There are exceptions to this rule, however, and they include if the minor is married, if the minor is pregnant, or if the minor is considered “emancipated”. 2  Each state has its own laws concerning exceptions to the general rule, so your employer’s policy should include those exclusions.

 

In an emergency situation, if the patient, including a minor, is unable to provide his or her own consent, consent is presumed and treatment is provided absent directions to the contrary (e.g., a living will or durable power of attorney for health care or other such form).

 

Another general principle of informed consent is that it is the health care provider doing the procedure or treatment that obtains the informed consent of the patient, including a nurse midwife or nurse anesthetist, as examples. Obtaining informed consent is a process that requires a detailed exchange of information concerning the treatment or procedure so that the patient can make a knowledgeable choice about the proposed plan.

 

So, with your employer’s policy as a guide, what is your role in obtaining the informed consent of the patient?  Generally, you are responsible for:

 

      **Ensuring that the consent form is signed by the appropriate person—e.g., the

          patient, the guardian, the agent under a durable attorney for health care.

          Your only role is as a witness to the person putting his or her signature on the

          form and dating the form.  The forms provide a place for your signature as the

          witness and the date as well;

 

     **Document that the signature was obtained, including the date and time in the

         nursing notes;

 

      **If the patient seems confused about the procedure or has additional questions,

         your role is one of an advocate for the patient.  Instruct the patient not to sign

         the form until the requested information  is obtained, notify the appropriate

         health care provider (e.g., physician, surgeon, nurse practitioner) and document

         same;

 

    ** You can explain the nursing care that will take place after the procedure or

         treatment, what medications you administered or will administer, and any other

         aspect of nursing care; and

 

    **  Provide comfort and support to the patient and his family or guardian while

         waiting for the procedure or treatment to begin.

 

FOOTNOTES

        See, as examples, Elena Nichols and Peter Buckley  (2007), “Informed

Consent And Competency: Doctor’s Dilemma On The Consultation Liaison Service”, 4(3) Psychiatry, 53-55.  Available at http://ncbi.nlm.nih.gov/pmc/articles/PMC29223591.   Accessed 5/15/13; Deborah Bowman, John Spicer and Rehana Iqbal  (2012).  Informed

Consent: A Primer For Clinical Practice.  NY: Cambridge University Press.

 

  1. See, Ann Maradiegue (2003), “Minor’s Rights Versus Parental Rights: A

Review Of Legal Issues In Adolescent Health Care”, 48 (3) Journal

Of Midwifery And Womens’ Health.  Available at http://medscape.com/viewarticle/456472 .  Accessed 5/14/13.

 

DISCLAIMER

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.
REFERENCES

ABOUT THE AUTHOR

Nancy Brent: Nursing

Nancy Brent: Nursing

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

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