Informed Consent and Unauthorized Treatment

Virtually all states have recognized, either by legislation or by common law, the right to receive information about one's medical condition, treatment choices, risks associated with the treatments, and prognosis. The information must be in plain language that can be easily understood and must be comprehensive enough to allow the patient to make an "informed" decision about his or her healthcare.

What Is Informed Consent?

The informed consent process isn’t only an ethical obligation for doctors, it’s also a legal one. State laws often take a patient-centric approach. Generally, the doctor or one of his or her representatives is required to discuss the patient’s diagnosis, the nature of the recommended treatment, any risks associated with the treatment, alternative forms of treatment, the risks associated with those alternatives, and the consequences of taking no action at all. If the patient has received all of this information, any consent to treatment then given will be presumed to be informed consent. Most hospitals, doctor’s offices, and treatment centers require their patients to sign informed consent forms so that consent will be in writing.

Special Cases: Competency

In order to give his or her informed consent, a patient must be competent. Generally, adults are presumed to be competent. However, the presumption can be challenged in cases of mental illness or other impairments. Minors, unlike adults, are generally presumed to be incompetent and are therefore, unable to give consent to medical treatment and procedures. In such cases, the parent or guardian of the child must give consent on the minor’s behalf.

Unauthorized Treatment

A doctor who fails to obtain informed consent for non-emergency treatment may be charged with a civil and/or criminal offense such as battery which is the unauthorized touching of the plaintiff's person. In a civil suit, the patient will have to show two elements. First, the patient must show that the doctor performed the treatment or procedure without his or her informed consent. Second, the patient has to show that had she known about the risks of the procedure, she would’ve decided not to have it done and, therefore, avoided the injury.