Consent for Treatment

Consent and authorization are required for all medical treatments except in unusual circumstances, and any health care provider who provides treatment without proper consent would be open to a charge of battery and could be subject to a civil action for damages for performing a procedure or investigation without consent of the individual or legal guardian (Macbeth 2002). When a child is admitted to the hospital, obtaining a general consent for all treatments is appropriate; however, specific situations, such as surgical procedures or HIV testing, require special informed consent, and concepts of how to approach different situations change over time.

Informed consent requires that patients or legal guardians (if the patient is a minor) receive a full and reasonable explanation of the risks and benefits of

This chapter has been adapted from Shaw RJ, DeMaso DR: "Legal and Forensic Issues," in Clinical Manual of Pediatric Psychosomatic Medicine: Mental Health Consultation With Physically Ill Children and Adolescents. Washington, DC, American Psychiatric Publishing, 2006, pp. 59-74. Copyright 2006, American Psychiatric Publishing. Used with permission.

treatment, including no treatment, and possible alternative treatments from their health care providers (Kuther 2003). Obtaining informed consent is a process that involves four distinct steps: 1) determining who has the authority to consent, 2) determining whether the person with the authority to consent is competent, 3) providing all the material information necessary for a reasonable person to make an informed decision, and 4) obtaining the agreement of the person with the authority to consent.

The consent must be voluntary and knowledgeable. The best practice is to obtain written consent and document the informed consent process in the medical record, particularly for complicated treatments. As a general rule, anyone who has reached the age of majority, usually 18 or 21 years, may consent to treatment and is legally presumed competent until demonstrated otherwise.

Issues regarding consent are more complicated with children and adolescents because the doctrine of informed consent has only a limited direct application in pediatrics (Kuther 2003). Minors under age 18 are often considered to be incompetent to make decisions regarding their medical treatment. Instead, consent is usually obtained from a parent or legal guardian, who is assumed to act in the best interest of the child. Consent issues with minors are complicated in part because the best interests of the child are hard to define and are often subjective (Kuther 2003).

Recognition that most adolescents have the capacity to participate in decisions about their health care is increasing, as is the willingness of parents and health care providers to include adolescents in decision making (Kuther 2003). The American Academy of Pediatrics Committee on Bioethics (1995) has taken a developmental perspective toward informed consent and recognizes that as minors approach and progress through adolescence, they need a more independent relationship with their health care providers. Pediatricians have been advised that they have an ethical duty to promote the autonomy of minor patients by involving them in the medical decision-making process to a degree commensurate with their abilities (American Academy of Pediatrics Committee on Bioethics 1995).

Assent is a means of involving minors in treatment decisions. It is an interactive process between a minor and a health care provider that involves develop-mentally appropriate disclosure about the illness and solicitation of the minor's willingness and preferences regarding treatment (American Academy of

Pediatrics Committee on Bioethics 1995; Kunin 1997). This commonly accepted definition of assent as a minor's agreement to participate sets a lower standard of competence than informed consent because assent does not require the depth of understanding or the demonstration of reasoning ability required for informed consent. Assent is a means of empowering children and adolescents to their full abilities (Kuther 2003). Obtaining assent from children and adolescents with mental health issues is often more challenging because many psychiatric disorders are associated with poor insight and judgment along with a higher resistance to treatment.

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