Page 73 - Athletic Health Handbook
P. 73
The right to make an informed the risks and consequences of that As noted previously, a patient’s
decision about one’s medical treatment treatment, including any common consent must also be voluntary. This
is a fundamental principle of law and side effects, pain, or discomfort that means the patient should not be
medical ethics. It is well established can be expected to result from the rushed or pushed into consenting to
that a physician may not treat a patient treatment; any reasonably feasible a procedure. For surgical and other
without the patient’s informed and treatment alternatives; and the likely major procedures, the patient should
voluntary consent. This principle prognosis if the proposed treatment be given some time to think about
applies whether the treatment takes is not undertaken. The physician his or her treatment options before
place in a hospital, at a physician’s discharges his duty by making a being asked to sign a consent form.
office, or in an athletic training room. reasonable effort to convey sufficient
Failure to obtain such consent is an information to the patient. Commonly Asked Questions
invitation to legal liability.
Significantly, the physician is not Under what circumstances is
The relationship between team required to inform the patient of all consent not required? There are a
physicians and athletes is often more possible risks. Risks that are unforesee- few situations in which informed
complicated than a traditional physi- able, extremely remote, or commonly consent is not required or may be
cian-patient relationship. The team known need not be disclosed. based on less than full disclosure. For
physician is typically hired and paid routine procedures, like a physical or
by the organization but still has In discussing treatment options blood test, it is generally not necessary
certain ethical duties and responsibil- with the patient, the prudent physician to obtain consent, either because there
ities to the patient. This dual relation- should take into account the patient’s are no significant risks involved or
ship can raise difficult issues with individual characteristics, including because the patient’s consent is implied
respect to privacy and confidentiality his or her knowledge, communication from the circumstances. The patient
and numerous other issues.1 However, skills, and general functional capacity, may also waive full disclosure and
one concept that is not altered by the in determining how much information informed consent, but such waiver
complex relationship between team should be disclosed. must be voluntary and fully docu-
physicians and athletes is the informed mented. Physicians are also not
consent requirement. Generally speaking, the patient obligated to seek consent in an
should be informed about all of the emergency when there is no time to
Informed Consent Basics material risks and benefits or the discuss the options with the patient
procedure, as well as any reasonable or the patient is unconscious and no
The doctrine of informed consent is alternatives. Depending on the state, appropriate surrogates are available
rooted in the fundamental principle what is “material” is determined to provide substituted consent.
that every human being of sound from the perspective of either a Thus, consent would generally not
mind has the right to make decisions reasonable physician or a reasonable be required to treat an athlete for
about his or her body, including patient acting under the same or an on-field emergency—such as a
the health care treatment he or she similar circumstances. concussion or heart attack. If there is
receives. Physicians who impose time to seek consent, but the patient
treatment decisions on patients with- In some cases, the patient will is incapacitated, a surrogate should
out their consent or against their will not be capable of understanding generally be consulted.
are potentially liable for battery and/or and appreciating the information
civil damages. Thus, the physician provided. This may in fact be true Should the consent form be in
must obtain the patient’s consent for an athlete who has sustained a writing? The answer is unequivocally
in advance for any treatment or head injury, for example. In such cases, yes. Although consent is not required
procedure that raises a material consent would have to be obtained to be in writing to be legally effective,
risk. However, for the consent to be from an appropriate surrogate, such a written consent form is the best
legally effective, it must be both well- as the next of kin, a guardian, an defense against a lawsuit based on lack
informed and voluntarily given.2 agent under a health care power of of informed consent. Indeed, many
attorney, or other legal representative. states have laws that create a presump-
To bring this principle into effect, The proper surrogate decision-maker tion that consent is validly obtained
the provider must disclose and explain will vary from case to case and from if it is in writing and if certain other
the diagnosis and the nature of the state to state. Some states have specific requirements are satisfied. A written
patient’s condition; the nature and rules for obtaining substituted consent. consent form also helps ensure consis-
purpose of any proposed treatment; Others leave this decision up to the
practitioner’s best judgment.

THE TEAM PHYSICIAN AND LEGAL ASPECTS OF INFORMED CONSENT 73
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