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

  CONSENT MAY BE:

      *EXPRESS (ORAL OR WRITTEN)

      *IMPLIED (VOLUNTARY SUBMISSION
      TO THE PROCEDURE)

 Express consent should be obtained
   whenever possible….
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
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)
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.”
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.
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).
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.
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.
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].
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.
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.
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.
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].
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)].
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.”
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.
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].
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
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.
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)
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)].
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.
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.
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].
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
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.
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)
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.

				
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