Basic Concepts of Health Care Law

First and foremost in health care law consideration is the concept of patient autonomy as a fundamental right. The competent, unimpaired adult (a person who has reached the age of majority) has the right to choose whatever health care treatment he or she will receive, even if that choice might otherwise seem illogical.

Informed consent shows the patient's agreement to a course of treatment and must be obtained before any treatment of a patient. Lack of informed consent may be grounds for medical malpractice claims and potential (but rare) criminal prosecutions. For example, touching a person (such as pro­viding medical care) without consent is considered battery under the law— illegal touching that causes some legal or physical harm to the patient. In addition, an allegation of insufficient informed consent can be added to an allegation of malpractice to imply that the physician is careless.

Consent may be legally obtained from competent, unimpaired adults for their own care. However, there may be issues about who may consent for a minor, such as in the case of a pediatric transfer. Generally, a parent may consent for health care to his or her minor child. Other adults may consent for care of a minor based on state statutes that establish health care surrogate or in loco parentis (someone standing in for the parent) laws. The legal order in which decision-making power is conferred on relatives or significant others varies significantly from state to state. Some states allow minors to consent for care related to reproductive and sexually transmitted disease concerns.

Another area of concern is the issue of minors who are pregnant or who are parents, whether married or unmarried. Some states clearly establish by law that minors who are parents may consent for the care of their children and for themselves. Other state laws allow minor parents to consent to the care of their child but not to their own care unless they are married. In some states, a pregnant minor female may consent to her own care and that of her unborn child, whereas in others, she may not do so, and the mother's parents retain legal power of consent over the pregnant minor and the unborn child.

In some states, minors may gain limited adult rights through the process of emancipation. Depending on the state, a child may be considered emanci­pated by marriage, military service, living apart and financially independent, or through court order. Emancipated minors may give their own informed consent and enter into contracts.

There is also the principle of implied or emergent consent. This form of consent exists when the surrounding circumstances lead a reasonable person to believe that consent would have been granted even though the patient or legal surrogate did not directly express agreement. For example, one would expect lifesaving measures to be taken in the sudden, unforeseen circum­stance that required action to protect a life. Common and statutory laws generally have supported physicians and health care professionals providing emergency care for children without the consent of a parent or guardian.

Providers must be familiar with the laws and regulations dealing with consent in their state of operation. With advice from legal counsel who have expertise in health care law, transport services should develop written poli­cies and guidelines that conform to federal and state laws regarding consent for the treatment of minors, including specific guidelines on parental notifi­cation and patient confidentiality for unaccompanied minors.

For consent to be valid, the patient must be properly informed.

Ideally, informed consent is documented on a specific form that details the service to be provided (such as helicopter transfer with medical care en route) and a simple, clear statement of the risks associated with the transfer. A statement that “risks and benefits were discussed with the patient” is not sufficient. Hospitals should use a standardized form that includes the reason for transfer, medical benefits and risks, mode and level of transport, care to be provided during the transport, and the name of the receiving facility and authorized accepting person or physician (Appendix C).

Whenever possible, the consent should be signed by the patient or parent. If written signature is not possible, verbal authorization or phone consent should be obtained from the legal surrogate and noted and signed by the person obtaining the consent (and witness if required) when possible. Patients who are unable to consent because of injury or medical condition, intoxication, mental illness, or legal incompetency (eg, a minor) who do not have a legal surrogate available are presumed to have given implied consent for reasonably necessary care. The law generally requires that a reasonable effort must be made to contact the parent(s) or legal guardian or responsible party (such as a state agency guardian for children or developmentally dis­abled patients or prison warden for incarcerated patients) for consent unless physicians have determined that the delay would endanger the patient. The AAP, the American College of Surgeons, the Society of Pediatric Nurses, the Society of Critical Care Medicine, the American College of Emergency Physicians, the Emergency Nurses Association, and the National Association of EMS Physicians have endorsed the statement that “Appropriate medical care for the pediatric patient with an urgent or emergent condition should never be withheld or delayed because of problems with obtaining consent.”

It is important to note that under the Emergency Medical Treatment and Active Labor Act (EMTALA; see the “Emergency Medical Treatment and Active Labor Act” section), a minor can request an examination or treatment for an emergency medical condition. A hospital is not to delay care while waiting for parental consent. If no emergency is found to exist, further care may be deferred while awaiting consent.