Exceptions to the Legal Requirements: Incompetence

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Framework ◽  
Legal Requirements ◽  
Legal Doctrine ◽  
Legal Cases ◽  
Incompetent Patient ◽  
Consent To Treatment ◽  
Surrogate Decision ◽  
Usual Process ◽  
Patient Competence

It might seem strange to locate discussion of incompetence under the heading of “exceptions.” Although patient competence serves as a prerequisite for informed consent, surely patient incompetence cannot serve to relieve physicians of all obligations, either ethical or legal, under the doctrine of informed consent. The goals of informed consent—safeguarding patient welfare and autonomy—apply no less to incompetent patients, although they must be pursued differently. The goals of informed consent are pursued on behalf of an incompetent patient by a process of surrogate decision making. A surrogate or proxy participates in the informed consent process on behalf of the incompetent patient. Yet, from the perspective of the physician, the patient’s incompetence constitutes an exception to the usual process of informed consent. A determination of incompetence alters the legal requirements for physician disclosure and for patient consent and thus it is properly regarded as an exception in this sense. This chapter, like the previous two, focuses on the legal doctrine of informed consent and addresses the variation in the legal requirements occasioned by a patient’s incompetence. We leave to others to examine in greater detail the ethical justifications for the legal framework surrounding treatment of incompetent patients (3). It has been recognized since the earliest legal cases dealing with consent that certain individuals are incompetent to consent to treatment and that they may be treated without their consent (4,5). One alternative to treatment without the patient’s consent would be no treatment at all (6), a result that would make a fetish of consent, for it would mean that those lacking the ability to make medical decisions would be required to forgo medical care. The exception for incompetent patients is closely related to the emergency exception. In fact, many situations involve an overlap of the two exceptions, since a number of cases of genuine emergency treatment involve unconscious (and thus incompetent) patients. However, the class of incompetent patients includes more than just those who are unconscious, and situations arise involving the treatment of incompetent patients that are not emergencies.

Decisional capacity to consent to treatment and anaesthesia in patients over the age of 60 undergoing major orthopaedic surgery

2019 ◽  
Vol 59 (4) ◽  
pp. 247-254 ◽  
Author(s):  
Gabriele Mandarelli ◽  
Giovanna Parmigiani ◽  
Felice Carabellese ◽  
Silvia Codella ◽  
Paolo Roma ◽  
...  
Keyword(s):  
Informed Consent ◽  
Orthopaedic Surgery ◽  
Decisional Capacity ◽  
Capacity To Consent ◽  
Capacity Evaluation ◽  
Decision Making Capacity ◽  
Consent To Treatment ◽  
Major Orthopaedic Surgery ◽  
Pain Symptoms ◽  
State Examination

Despite growing attention to the ability of patients to provide informed consent to treatment in different medical settings, few studies have dealt with the issue of informed consent to major orthopaedic surgery in those over the age of 60. This population is at risk of impaired decision-making capacity (DMC) because older age is often associated with a decline in cognitive function, and they often present with anxiety and depressive symptoms, which could also affect their capacity to consent to treatment. Consent to major orthopaedic surgery requires the patient to understand, retain and reason about complex procedures. This study was undertaken to extend the literature on decisional capacity to consent to surgery and anaesthesia of patients over the age of 60 undergoing major orthopaedic surgery. Recruited patients ( N=83) were evaluated using the Aid to Capacity Evaluation, the Beck Depression Inventory, the State–Trait Anxiety Inventory Y, the Mini-Mental State Examination and a visual analogue scale for measuring pain symptomatology. Impairment of medical DMC was common in the overall sample, with about 50% of the recruited patients showing a doubtful ability, or overt inability, to provide informed consent. Poor cognitive functioning was associated with reduced medical DMC, although no association was found between decisional capacity and depressive, anxiety and pain symptoms. These findings underline the need of an in-depth assessment of capacity in older patients undergoing major orthopaedic surgery.

scholarly journals Development, piloting, and evaluation of an evidence-based informed consent form for total knee arthroplasty (EvAb-Pilot): a protocol for a mixed methods study

2021 ◽  
Vol 7 (1) ◽  
Author(s):  
Alina Weise ◽  
Julia Lühnen ◽  
Stefanie Bühn ◽  
Felicia Steffen ◽  
Sandro Zacher ◽  
...  
Keyword(s):  
Total Knee Arthroplasty ◽  
Informed Consent ◽  
Adverse Events ◽  
Knee Arthroplasty ◽  
Evidence Based ◽  
Nocebo Effect ◽  
Legal Requirements ◽  
Consent Forms ◽  
Link Type ◽  
Total Knee

Abstract Background Practitioners frequently use informed consent forms to support the physician-patient communication and the informed consent process. Informed consent for surgery often focuses on risk centered information due to high liability risks for treatment errors. This may affect patients’ anxiety of adverse events and the nocebo effect. This study focuses on the optimization of pre-surgical information on risks and complications, and at the same time reconciles these information with legal requirements. Methods The development, piloting, and evaluation of evidence-based informed consent forms for total knee arthroplasty (TKA) and related anesthesia procedures will follow the UK MRC Framework for developing and evaluating complex interventions. Conducting different sub-studies, we will (I) qualitatively explore the information acquisition and decision-making processes, (II) develop and pilot test evidence-based informed consent forms on the example of TKA and related anesthesia procedures, (III) conduct a monocentric interrupted time series (ITS) pilot study to evaluate the effects of evidence-based informed consent forms in comparison with standard consent forms, and (IV) perform a process evaluation to identify barriers and facilitators to the implementation of the intervention and to analyze mechanisms of impact. Discussion The evidence-based and understandable presentation of risks in informed consent forms aims at avoiding distorted risk depiction and strengthening the patients’ competencies to correctly assess the risks of undergoing surgery. This might reduce negative expectations and anxiety of adverse events, which in turn might reduce the nocebo effect. At the same time, the practitioners’ acceptance of evidence-based informed consent forms meeting legal requirements could be increased. Trial registration ClinicalTrials.gov, NCT04669483. Registered 15 December 2020. German Clinical Trials Registry, DRKS00022571. Registered 15 December 2020

Certified Patient Decision Aids: Solving Persistent Problems with Informed Consent Law

2017 ◽  
Vol 45 (1) ◽  
pp. 12-40 ◽  
Author(s):  
Thaddeus Mason Pope
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Medical Treatment ◽  
Shared Decision Making ◽  
Decision Aids ◽  
Shared Decision ◽  
Legal Doctrine ◽  
Patient Decision Aids ◽  
Patient Decision ◽  
Decision Making Processes

The legal doctrine of informed consent has overwhelmingly failed to assure that the medical treatment patients get is the treatment patients want. This Article describes and defends an ongoing shift toward shared decision making processes incorporating the use of certified patient decision aids.

scholarly journals Introduction: Some ponderings on the use of the law in the writing of histories

2001 ◽  
Vol 16 (2) ◽  
pp. 169-175
Author(s):  
NIMROD HURVITZ ◽  
EDWARD FRAM
Keyword(s):  
Legal Doctrine ◽  
Legal Cases ◽  
Legal Documents ◽  
Historical Significance ◽  
Partial Reconstruction ◽  
The Social ◽  
The Hours ◽  
History Of ◽  
The Subject ◽  
The Law

Professional jurists are often inquisitive about the subject matter of their calling and in the course of their careers may well develop fascinating insights into the law and those who interpret it. Their employers, however, be they governments, corporations, firms, or private clients, rarely show similar enthusiasm for such insights unless the hours spent pondering the social or historical significance of this or that legal view have a contemporary value that justifies the lawyer's fee.Thankfully, other members of society are rewarded for mining the legal records of the past. For legal historians, the search often focuses on the changing legal ideas and how legal doctrine develops over time to meet the changing needs of societies. Yet because the law generally deals with concrete matters – again, because jurists are paid by people who are unlikely to remunerate those who simply while away their hours making up legal cases – it offers a reservoir of information that can be used, albeit with caution, in fields other than just the history of the law.A partial reconstruction of the law of any given time and place is among the more obvious historical uses of legal documents but statutes, practical decisions, and even theoretical texts can be used to advance other forms of the historical endeavour. Legal works often reflect the values both of jurists and society-at-large, for while the law creates social values it is not immune to changes in these very values.

scholarly journals MEDICAL AND PROCEDURAL-LEGAL ASPECTS OF INPATIENT AND OUTPATIENT FORENSIC PSYCHIATRIC EXAMINATION

2020 ◽  
Vol 73 (7) ◽  
pp. 1533-1538
Author(s):  
Sandra Kaija ◽  
Inga Kudeikina ◽  
Nataliya Gutorova
Keyword(s):  
Medical Practitioner ◽  
Legal Framework ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Civil Procedure ◽  
Legal Doctrine ◽  
Psychiatric Examination ◽  
Legal Norms ◽  
The Subject ◽  
Forensic Psychiatric

The aim: The aim of the study is to define the legal framework of forensic psychiatric examination commissioned by the court in relation to the competence of medical practitioners and the position of the subject as a patient in the process of forensic psychiatric examination in order to determine the correlation of special legal regulation with criminal and civil procedure regulation and to make proposals for the enhancement of the legal regulation. Materials and methods: This study is based on the analysis of international law, medical civil procedure and criminal procedure legislation, juridical practice, medical law legal doctrine. The following methods were used in this research: the method of interpretation of legal norms, analysis of legal acts, and the induction-deduction method, upon which the conclusions were drawn and recommendations were provided. Conclusion: The current regulatory framework does not provide for the procedure by which the subject’s medical treatment is conducted during forensic psychiatric examination, nor does it determine the criteria for the admissibility of treatment of the persons concerned and the extent of treatment. During the examination, the medical practitioner who is in the expert’s procedural position in relation to the subject under examination in the particular examination should not carry out the treatment of the subject.

Translating Rights into Access: Language Access and the Affordable Care Act

2012 ◽  
Vol 38 (2-3) ◽  
pp. 348-373 ◽  
Author(s):  
Joel Teitelbaum ◽  
Lara Cartwright-Smith ◽  
Sara Rosenbaum
Keyword(s):  
Informed Consent ◽  
Civil Rights ◽  
Healthcare Quality ◽  
The United States ◽  
Language Access ◽  
Consent To Treatment ◽  
Diverse Patient Population ◽  
History Of ◽  
Crucial Information ◽  
Nuremberg Trials

More than twenty-four million people in the United States are considered limited English proficient (LEP), and numerous studies have documented the consequences of communication barriers in healthcare. These consequences include: patients’ inability to become engaged and involved in their care; the absence of crucial information—including cultural information—essential to healthcare quality; risks to patient safety arising from the misunderstanding of physician instructions; and ethical and legal lapses stemming from the absence of informed consent. Addressing healthcare rights necessarily entails coming to grips with how to facilitate communication and the exchange of information between the healthcare system and an increasingly diverse patient population.The history of language access services in healthcare is grounded in two distinct bodies of law: the law of informed consent and civil rights law. Modern notions of informed consent law—which have their roots in the Nuremberg trials of the late 1940s—would recognize a cause of action in tort where a lack of adequate communication creates a barrier to an LEP patient's ability to consent to care. In modern healthcare law, the ability of patients to affirmatively give informed consent to treatment is considered a fundamental element of healthcare quality.

On some issues of legislation harmonization on legal proceedings and representation: comparative legal characteristics

2021 ◽  
pp. 373-387
Author(s):  
Valentina M. Bolshakova
Keyword(s):  
Social Activity ◽  
Legal Framework ◽  
Judicial System ◽  
Access To Justice ◽  
Legal Doctrine ◽  
Basic Principles ◽  
Legal Proceedings ◽  
Social Trends ◽  
The Subject ◽  
Judicial Protection

The subject of research is the issues of improving the legislation on the judicial system, legal proceedings types, further unification of duties of general jurisdiction courts and analysis of requirements for a procedural representative. The modern legal doctrine contains legislative regulations governing various spheres of social activity. One of these areas is the regula-tion of the structure and regulatory legal framework of the activities of judi-ciary, administering justice and implementing in practice the basic principles of the legal state. Method, research methodology: we illustrate the need to improve the legislation on the judicial system and legal proceedings based on the application of comparative legal and systemic research methods. The novelty of research, main conclusions: we consider social trends leading to judicial changes, we present the corresponding opinions of scientists on this issue. As a result of the conducted scientific research, we establish that some normative legal acts regulating the types of legal proceedings, the duties of general jurisdiction courts, as well as the institution of procedural representation, need to be amended in order to bring them into line with constitutional provisions and establish precise legal and technical formulations. We especially note that this study makes it possible to assess how optimal the judicial and procedural legislation is at present and how effectively it allows for judicial protection of violated or disputed rights and simplifies citizens' access to justice.

Fulfilling the Underlying Purpose of Informed Consent to Research

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Best Interests ◽  
Research Subjects ◽  
Bodily Integrity ◽  
Traditional Concept ◽  
Treatment Situation ◽  
Consent To Treatment ◽  
History Of ◽  
Participation In Research ◽  
Treatment Settings

To a great extent the underlying purposes of informed consent in research settings resemble those in the treatment situation. Informed consent promotes individuals’ autonomy by allowing subjects to make meaningful decisions about participation in research projects. Informed consent is also a means of reducing inequalities of knowledge and power in the researcher-subject relationship and thus increases the cooperation and compliance of subjects. Increased knowledge also enhances patients’ abilities to make decisions that will protect them from unwanted and undesirable intrusions on bodily integrity, perhaps of even greater importance here than in treatment settings, because of the sorry history of abuses inflicted on research subjects. As great as the similarities are between consent to treatment and consent to research, the differences are equally great. In treatment settings, as already noted, clinicians and patients are presumed to share the same goal: promoting patients’ health. They may disagree over the means, but a general coincidence of interests is ordinarily the rule. Charles Fried calls this confluence of interests the principle of personal care. “The traditional concept of the physician’s relation to his patient is one of unqualified fidelity to that patient’s health. He may certainly not do anything that would impair the patient’s health and he must do everything in his ability to further it”. The essence of this principle is that physicians will not allow any other considerations to impinge on their decisions as to what measures are in their patients’ best interests. Since the goal of scientific investigation is the production of generalizable knowledge, not primarily the promotion of individual health, the interests of subjects and researchers are not identical. Clinician-researchers who are providing treatment to subjects in their research studies may feel this clash of interests most acutely as steps taken to protect the generalizability of the data may conflict with the maximization of benefit to individual subjects (2). The need to take this conflict into account in the decisionmaking process is largely responsible for the differences between consent to research and consent to treatment.

Legal Rules for Recovery

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Theory ◽  
Medical Profession ◽  
Physician Behavior ◽  
Medical Decision ◽  
Legal Doctrine ◽  
Legal Rules ◽  
Judicial Remedy ◽  
The Law ◽  
Injured Patients

This chapter deals with the legal theory and procedural framework under which patients can obtain redress for their injuries resulting from treatment administered in the absence of informed consent. The evolution of the legal doctrine was driven by the demands of patients for redress for injuries, and more attention has been given by courts and legislatures to the questions of when and how compensation might be obtained than to providing guidance for clinicians. In some important respects, the distinction between the law as it applies to the physician engaged in medical decision making with a patient and the law as it applies to that same patient who later seeks compensation in the courts is an artificial one. Insofar as the spirit of informed consent is not embraced voluntarily by the medical profession, but is adhered to in large part to avoid the likely consequences of failure to observe the legal rules, physician behavior will be shaped not only by the rules themselves but also by the way they are enforced. If, for example, the rules governing the means of redress were complex, time-consuming, and unlikely to yield the desired compensation, few injured patients would pursue a judicial remedy. As a result, physicians would eventually realize that adverse consequences were unlikely to follow from a failure to observe the relevant rules and, except to the extent that they had accepted the ethical theory of informed consent, their adherence to the doctrine would crumble. Some critics of the present system contend that this has already happened (see Chapter 7). On the other hand, rules that make recovery easier and more certain would be likely to encourage compliance with the requirements for informed consent. Differential emphasis by the courts on particular kinds of lapses by clinicians might also shape their actions accordingly. For example, the courts’ focus on risk information has led many physicians to tailor disclosure to emphasize risks. Thus, the issues addressed in this chapter, although framed in legal terminology, are important (some would argue crucial) determinants of the ultimate impact of informed consent.

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