Chapter 7-3 Doctrine of Informed Consent

• Jurisdiction: United States

7-3 Doctrine of Informed Consent

In Chapter 4, we discussed the doctrine of informed consent as it relates to persons suffering from Alzheimer's disease and other forms of dementia. We noted that capacity to consent to medical treatment is based on this "doctrine of informed consent," which holds that patients have the ultimate right to prevent unauthorized contact with their bodies, and that health care providers have a duty to disclose relevant information to allow their patients to make informed decisions.¹¹

In Texas, the doctrine of informed consent is narrowed down so that the only theory upon which a plaintiff may recover is that of the medical practitioner's negligence in failing to disclose the risks or hazards of the medical procedure where such disclosure could have influenced a reasonable person in making a decision to give or withhold consent to the procedure.¹² However, the patient's consent must be given in writing, signed by the patient or by a person authorized to sign on his or her behalf, and by a competent witness.¹³ That being said, we further discovered in Chapter 4 that a patient's right to informed consent remains intact even after a court has adjudicated him or her mentally incapacitated and thus unable to physically—audibly or otherwise—grant consent. When that happens, the patient's decisions are made by a surrogate decision maker. The identity of the surrogate decision maker is found in the patient's advance directives.

Before we get to advanced directives, though, we note that Texas law does provide some exceptions to the doctrine of informed consent. Let us discuss them at this point.

7-3:1 Texas Exceptions to the Doctrine of Informed Consent

Unless a patient has made other arrangements, two medical situations do not require his or her explicit prior consent for his or her medical care provider to act: (1) in case of an emergency and (2) when the medical care provider believes care is necessary.

7-3:1.1 The Emergency Care Exception

If a patient is unable to communicate and his or her life is threatened by injury or illness and the time necessary to obtain consent would place him or her in immediate danger, Texas law allows the patient's caregiver to presume that he or she would consent to medical care in this emergency circumstance.¹⁴ Accordingly, the medical provider can act and would not be held liable under the law for so doing.

7-3:1.2 The Therapeutic Exception

A medical practitioner may also administer treatment without...