By Jeremy Wale, JD

Elderly patients may not always have the capacity to make informed consent—and if recurring treatment is required, there are special issues. A patient’s absolute right to make informed decisions regarding his or her medical care is the foundation of informed consent. The American Medical Association states, “Physicians should sensitively and respectfully disclose all relevant medical information to patients. The quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients.”

First, some history on informed consent. It began in earnest as a legal requirement with a New York lawsuit back in the early 1900s. Justice Cardozo of the New York Court of Appeals stated, “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body…”1 This Appeals Court decision laid the framework for our modern-day informed consent laws and rules.

Over the years, case law relating to informed consent has evolved—with some states introducing statutes governing consent requirements for healthcare providers.

Informed consent laws differ by state in the amount of information a healthcare provider is required to disclose to the patient. Some states employ a “reasonable physician” standard, meaning a healthcare provider must provide the amount of information a reasonably prudent physician would provide in the same or similar circumstances.2 Other states use a “reasonable patient” standard, requiring that a physician provide information that a reasonable patient would need to make an informed decision.3

Generally speaking, physicians do well to provide patients with enough information to be able to make a fully informed decision about medical care. Exceptions to the informed consent requirement can be made for emergencies where the patient is unconscious and arrives at a facility needing a life-saving procedure. Check your state laws so you know what is required for your informed consent discussions with patients.

Consent and the Elderly
Illnesses that require recurring treatment present unique challenges for physicians obtaining informed consent. Elderly patients are more likely to require recurring treatments, such as dialysis, radiation, and chemotherapy. When a patient agrees to undergo these types of treatment, the initial informed consent process ideally covers the entire course of treatment. Patients are told they may question the treatment process, as well as each individual treatment. Informed consent may require more than one conversation, especially in the case of chemotherapy, radiation, or dialysis.

Consider having an in-depth, detailed, informed consent discussion with each patient before you begin recurring treatments. Have the patient sign an informed consent document acknowledging that discussion and the patient’s consent to the course of treatment. Verifying with the patient at each visit that he or she wishes to continue the course of treatment is a good idea—as is noting that verification in the medical record.

Elderly patients also are more likely to present you with consent issues related to powers of attorney (POA), guardianships, mental competence, etc. Who, if not the patient, provides consent for an elderly patient’s medical care?

Powers of attorney come in various forms; limited, general, durable, and healthcare are the most common. A POA is a document where a “principal” names an attorney-in-fact (“agent”) to act on his or her behalf. The POA will usually outline the breadth of the agent’s decision-making authority. Depending on how it is drafted and the type of POA, the agent may have very limited or virtually unlimited authority to make decisions on behalf of the principal.

The type of POA provided to your practice will have a large impact on whether the individual named in the POA has the authority to make healthcare decisions on behalf of the patient. A healthcare POA is the most straight-forward type of POA. This document specifically outlines healthcare decision-making authority granted to the agent by the principal. Read healthcare POAs carefully to determine the authority granted to the agent.

Non-healthcare POAs typically do not give the agent the authority to make healthcare decisions. Exceptions exist. Outside of a healthcare POA, if healthcare decision-making authority is not specifically granted within a POA, do not make presumptions.

You also may encounter patients who lack the mental capacity to continue to make healthcare decisions. Patients with dementia or Alzheimer’s present consent issues that require preparation. You may be confronted with family disputes, court orders, conflicting POAs, or other documents that cloud the consent issue for a mentally incapacitated patient.

End-of-life decisions also may be delegated to an agent in a properly executed healthcare POA. Ideally, the patient will discuss his or her end-of-life directives with the agent prior to becoming incapacitated and/or unable to make those wishes known. It is very helpful when these directives are clearly outlined in a written document properly signed by the patient.

One of the best ways to avoid consent confusion for an elderly patient is to establish consent when the patient is of sound mind. Ask your elderly patients if they have executed any type of POA, living will, or other document outlining who has decision-making authority if the patient becomes incapacitated or otherwise unable to make decisions. Also, discuss with your elderly patients whether they have considered and made end-of-life directives.

Request a copy of documentation outlining decision-making authority and end-of-life directives, and keep those in the medical record. Consider reviewing them with the patient periodically to ensure they are current.

Refusing Treatment for Non-Payment
Payment concerns are becoming more prevalent due to high deductible health plans, uninsured patients, and lower reimbursement rates. What do you need to consider in these situations?

If you have self-pay patients, you may implement a pre-pay policy to ensure payment prior to rendering services. Difficulty may present when a patient requires an expensive diagnostic test or procedure they cannot afford. Consider establishing a policy addressing financial hardship and an associated payment plan for expenses that cannot be paid in one lump sum. Having payment arrangements in writing helps address these issues.

A more challenging scenario occurs when a patient refuses to consent to a test or procedure because he or she cannot afford it. These are particularly challenging in potentially life-threatening situations. Medical battery is a very real issue with real consequences. The most likely scenario for a medical battery claim is when the patient expressly refuses treatment and the physician performs the treatment over the patient’s objection.

If a patient expressly refuses treatment, the physician’s hands are tied unless he or she can get the patient to change her mind. Certain situations require you or your practice to obtain pre-approval for a test or procedure from a third-party payer. These pre-approvals will sometimes be denied. If a third-party payer denies a pre-approval, you have two options: either appeal the denial or ask the patient to pay for the test or procedure.

If you decide to appeal the denial, each third-party payer has an appeals process you must follow. If the appeal is unsuccessful, you may try calling the payer directly, asking to speak with a physician reviewer. Once all efforts are exhausted, it’s time for a documented conversation with the patient to explain the situation.

If a patient accepts responsibility for the cost of a test or procedure, you may want that in writing. If your practice offers financing, it’s helpful to have a written document outlining both parties’ expectations.

Treating elderly patients is often rewarding, despite special consent issues sometimes needing to be addressed. If you have any questions, please call your healthcare professional liability insurer.

1 Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129 (1914).
2 Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937, 939 (2015).
3 Janusauskas v. Fichman, 264 Conn. 796, 810 (2003).

Jeremy Wale, JD, ProAssurance Risk Resource Advisor. ProAssurance Group provides healthcare malpractice insurance and is rated A+ (Superior) by A.M. Best.
Copyright © 2016 ProAssurance Corporation. This article is not intended to provide legal advice, and no attempt is made to suggest more or less appropriate medical conduct.