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When Is Informed Consent Not Required? In certain situations, the patient's informed consent is not required before a physician may proceed with the delivery of medical care. In each of these situations, the hospital has developed specific policies and procedures to follow with which all physicians and other health care providers should be familiar. The Office of Legal Affairs should be contacted to answer questions regarding these procedures or provide advice on how to deal with specific situations. These situations include: Emergency treatment Often a physician will determine that a patient is in immediate need of medical treatment but is unable to give consent because of a physical or mental impairment. Medical treatment can be instituted under these circumstances once it is determined that: a) a delay in treatment would be life threatening or cause the patient serious harm; b) no close family member or surrogate is available to give consent on behalf of the patient; and c) the physician has no evidence that would suggest that the patient would oppose the treatment. The physician should document in the medical record the emergency circumstances under which the medical treatment without consent was rendered. This emergency exception should be narrowly construed. Therapeutic privilege This is the term used to describe the withholding of certain information from the patient by the physician based upon his or her judgment that disclosure of the information would have a harmful effect on the patient. When a physician invokes such a privilege, it is imperative that the objective justification for it be documented in the patient's medical record. This should include the reason why information was withheld, and both the information that was disclosed and not disclosed. It is not acceptable to use this privilege because the patient would be "anxious" or "upset" by the information, or the family does not want the patient told. The use of therapeutic privilege should be carefully considered and used infrequently. Lack of Capacity This is a situation in which a person lacks the legal capacity to make certain decisions regarding his or her care. Often, it may be possible to obtain family or surrogate consent; in other cases it may be necessary to have a court make such a determination in a special proceeding. When questions regarding the capacity of a patient arise, you may wish to consult with the Office of Legal Affairs for advice.   Patient Advanced Directives Policies The Federal Patient Self-Determination Act requires hospitals to develop policies and procedures that recognize a patient's right to accept or refuse medical treatment and to formulate advance directives in accordance with state law. The regulations require that adult patients be given written information at the time of admission regarding state law concerning advance planning for their medical treatment. In addition, a summary of the hospital's policy regarding these rights must be supplied; and the verbal and written information given to the patient must be documented in the medical record. All physicians and other health care providers should be familiar with this information and the hospital's policy and procedures regarding these subjects. Every physician has an important responsibility for ensuring that patients understand their right to plan in advance for their medical treatment. It is important to note that both written (e.g., living wills and health care proxies) and oral advance directives (e.g., statements made orally to a physician, witnessed by a third party and documented in the chart) are recognized under state law.   Do Not Resuscitate Orders Unless there is a Do Not Resuscitate (DNR) order in the medical record, all patients suffering cardiac or respiratory arrest will receive appropriate cardiopulmonary resuscitation (CPR). Physicians and other health care providers should be familiar with the hospital's Limiting Life Support Treatment policy. The responsible attending physician must discuss the DNR order with patient, family members and/or surrogate, and this physician must write the DNR order. No specific medical pre-condition is required for the entry of a DNR order consented to by a competent adult patient, and this written or oral consent must be obtained prior to writing the order, unless it is determined that the patient would suffer immediate and severe injury from a discussion of such an order. A DNR order may be written for an incompetent patient if the patient had, prior to losing capacity, consented to a DNR order. Before giving consent to a DNR order, a patient or the patient's surrogate, must be advised by the responsible attending physician of the patient's diagnosis and prognosis, the reasonable foreseeable risks and benefits of CPR, and the consequences of a DNR order. The patient's attending physician must document the medical record regarding discussions about DNR orders and the decisions made by the patient or the patient's surrogate.   Frequently asked questions regarding informed consent Question: May a patient revoke his or her consent for a procedure or treatment once it is given? Answer: Yes. A patient has the right to revoke his or her consent either verbally or in writing at any time. When this situation occurs, the patient's physician should be notified immediately. A patient has the right to revoke his or her consent during a procedure or treatment. If this occurs, the procedure or treatment should be terminated at the earliest (and safest) time possible. The patient's revocation of consent must be documented in the medical record. Question: Is it acceptable to obtain consent over the telephone by a parent, legal guardian, or surrogate, when they are unable to come to the hospital? Answer: Yes, but consent should only be obtained in this manner in emergency situations or when it is determined by a physician that the delay in treating the patient, while waiting for the arrival of the parent, legal guardian, or surrogate, would cause greater harm to the patient. The physician should disclose the same information as under normal circumstances. The substance of the telephone conversation and the name and telephone number of the person giving the consent must be documented in the medical record. Also, the telephone conversation should be witnessed by another professional staff member who should countersign the note in the medical record. Question: Consent forms are often signed in the office prior to admission for surgery. How long is the form to be considered valid? Answer: At Yale-New Haven Hospital, a surgical consent form is valid for up to 30 days, unless the surgeon has evidence that the patient has revoked consent. Question: Are faxed consent forms valid? Answer: Usually the health care facility is required to maintain original evidence of consent in its record. Faxed consent forms may be considered acceptable in unusual circumstances, but must be followed by the original form (brought from the office) immediately. Question: My patient has been premedicated but has not signed the consent form. May surgery proceed? Answer: It is much preferable to obtain documentation of the consent prior to premedication. However, presuming that the physician has discussed the surgery with the patient prior to premedication, documentation by the responsible physician of that discussion in the medical record may be acceptable under hospital policy. If the patient signs a form after premedication, the physician must document that fact and that the patient was awake, alert and aware of the circumstances. Question: My patient did not sign a consent form prior to surgery. Now that the surgery has taken place, should I get the form signed? Answer: No, this should never be done. Either no consent was necessary (because the surgery was an emergency), or consent was documented by the surgeon prior to surgery in a progress note. "Retrospective" consent is ineffective.