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Our clinic recently rewrote its policy on obtaining informed consent, and now I'm wondering if one part of it is legal. If a patient has a mental disability and a surrogate has durable power of attorney for healthcare on his behalf, do we need that surrogate's consent to perform a nonemergency procedure on the patient? Under our new policy, we're permitted to obtain consent from a family member instead, even if this person isn't the legally designated surrogate. Is this acceptable?-F.P., WIS.
No. If a patient with a mental disability has a surrogate decision maker identified in a legal document, the provider must obtain consent from this person before initiating medical treatments. This is especially true if the procedure is a nonemergency because the provider has plenty of time to notify the surrogate. (In an emergency, when failure to treat could harm the patient, clinicians have more leeway to treat without informed consent.) If your policy allows clinicians to obtain consent from a caregiver other than the person legally designated to make this decision, it's in conflict with the law unless the legal surrogate has signed a general consent form authorizing family members to consent to care on the patient's behalf.
The right to consent to or refuse treatment is a powerful right; violate it at your peril. If you provide care without legal consent, you could be charged with assault and battery. If problems develop due to care you provide without legal authorization, you're also vulnerable to legal liability for any harm the patient may suffer.
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