Module 2 discussion: consent for “non-competent” parties

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Discussion: Consent for “Non-Competent” Parties

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about what to list as the immediate cause of death on death certificates and
whether life insurance policies with suicide exclusion clauses would be pay-
able. (The California law specifically states that insurance coverage may not
be denied because of the individual’s decision to end his own life.)

Disability rights organizations and some religious groups have
mounted strong opposition, but opinion polls tend to show that a majority
of voters favor such laws. As one might imagine, this decades-old debate is
likely to continue for years to come.

Incompetence (non compos mentis) is a legal status, not a medical diagnosis,
but this determination is best made on the basis of a physician’s professional
judgment. The test is whether patients are capable of understanding their
condition, the medical advice they have been given, and the consequences of
refusing to consent.

Irrationality does not necessarily indicate incompetence. In one
famous case, a 72-year-old man with extensive gangrene in both legs faced
death within three weeks unless he agreed to have them amputated; with
surgery, his chances of recovery were good. When he decided against sur-
gery, the hospital petitioned the court for a determination of incompetence,
appointment of a guardian, and permission to amputate and give other neces-
sary treatment. The hospital argued that the man’s refusal was “an aberration
from normal behavior” and that the refusal amounted to suicide. However,
the court decided that even though the decision might seem irrational, the
man was competent. The extensive surgery was unacceptable to him, and his
right to privacy outweighed the state’s interest in preserving his life.35

A patient’s right to choose or to refuse treatment is based on com-
mon law, the right of self-determination on which the doctrine of informed
consent is grounded, and the right to privacy first enunciated in abortion
decisions. (Statutory provisions are discussed later in this chapter.) This right
is not unfettered, and the state is said to have four interests that may override
the individual’s freedom to decide:

1. Preservation of life
2. Protection of innocent third parties
3. Preservation of the ethical integrity of the medical profession
4. Prevention of suicide

The interest most often asserted in overriding a patient’s objections
and ordering treatment is the protection of third parties—usually minor
children or a fetus. For example, in In re Application of the President and
Directors of Georgetown College, Inc., despite a woman’s refusal on religious
grounds, the court ordered her to receive a blood transfusion for the sake of































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her seven-month-old child.36 The survival of dependent children, however, is
not always sufficient to override the patient’s right of refusal. In another case,
the court did not order a transfusion to save the life of a 34-year-old Jeho-
vah’s Witness, even though he had two young children. The judge was con-
vinced that adequate provision had been made for the children’s welfare.37

The state has sometimes been said to have an interest in “maintaining
the ethical integrity of the medical profession.”38 This argument asserts that
physicians should not be forced to give (or withhold) treatment against their
medical judgment or to assist in suicide because doing so will expose them
to possible criminal charges or malpractice suits. This alleged state interest,
however, is no longer persuasive.39 Instead, the courts and legislatures have
attempted to provide legal protection for physicians who agree to carry out
their patients’ wishes. For example, according to the Natural Death Act
(passed by a number of states), healthcare providers who comply with the law
are immune from criminal prosecution or civil liability.

Courts have recognized that in some instances, withholding or with-
drawing life-sustaining treatment is consistent with medical ethics:

It is perfectly apparent . . . that humane decisions against resuscitative or mainte-

nance therapy are frequently a recognized de facto response in the medical world

to the irreversible, terminal, pain-ridden patient, especially with familial consent.

. . . Physicians distinguish between curing the ill and comforting and easing the

dying. . . . Many of them have refused to inflict an undesired prolongation of the

process of dying on a patient in irreversible condition when it is clear that such

“therapy” offers neither human nor humane benefit.40

Many courts have held that, in itself, society’s interest in preserving
life is not sufficient to prevent a competent adult from making her own deci-
sions about treatment—at least if no third persons might be affected.41 The
less hopeful the patient’s condition and the more intrusive the therapy, the
weaker the state’s interest in preserving life. Even when the prognosis for
recovery is good, the patient’s right is usually upheld.42

Because most courts have determined that forgoing medical treatment
is not the equivalent of suicide but rather a decision to permit nature to take
its course, the fourth interest of the state—prevention of suicide—is usually
not persuasive in cases involving termination of treatment. However, the
line between actively taking life—suicide or euthanasia—and letting nature
take its course is not always clear. For example, an 85-year-old resident of a
nursing home was suffering from multiple ailments and deteriorating health.
Although the resident (a former college president) did not have a terminal
illness, he was discouraged about his future and decided to hasten his death
by fasting. A court found that the man was competent and had the right to

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refuse food and that the nursing home was neither obligated nor authorized
to force-feed him. The man was permitted to die of starvation.43

By contrast, a 26-year-old woman who had been severely disabled by
cerebral palsy since birth checked herself into the psychiatric unit of a hospital
and demanded that she not be fed but given only medication to relieve her
pain. Her intent was to starve herself to death. When the hospital sought
to force-feed her, she petitioned the court for an injunction to prevent the
hospital from doing so, asserting her constitutional right to privacy. The
court refused to issue an injunction, finding that the patient was not ter-
minally ill and that society had no duty to help her end her life. The court
found that the state’s interests in preserving life, maintaining the integrity of
the medical profession, and protecting third parties outweighed her right of
self-determination because other patients might be adversely affected if they
knew the hospital was helping a patient to die.44

Three years later, this woman’s health had so deteriorated that she
was in constant pain and was hospitalized because she was unable to care
for herself. After her physicians determined that she was not obtaining suf-
ficient nutrition through spoon-feeding, a nasogastric tube was inserted
despite her objections. A trial court denied the patient’s request to have the
tube removed but was overruled by the appellate court, which held that the
patient, who was still mentally competent, had a constitutional right of pri-
vacy that included the right to refuse medical treatment. The court further
ruled that the decision to refuse the tube feedings was not equivalent to
suicide and that the patient’s motives were irrelevant.45

Consent Issues for Incompetent Adults

A patient may be unable to grant consent by reason of incompetence or
other disability. A duly appointed guardian or healthcare surrogate can give
valid consent based on the patient’s known wishes. This concept is relatively
simple, but its application becomes complicated when the individual has
never been competent to express his intent.46 Treatment decisions for these
patients involve three questions that have troubled the courts and caregivers
for decades:

1. Who should make the decision?
2. What standards should apply?
3. What procedures should be followed?

The first landmark case dealing with these types of consent issues was
In re Quinlan.47 In 1975, 22-year-old Karen Quinlan sustained severe brain

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damage, perhaps as a result of consuming
alcohol or drugs. She was comatose and
on a respirator and remained for several
months in a persistent vegetative state (see
Legal Brief). When the hopelessness of
the situation eventually became apparent,
Karen’s parents asked that her life support
system be disconnected. Her physicians
and the hospital refused, and her father
filed suit to be appointed his daughter’s
guardian and to have the court authorize
the withdrawal of the respirator. (The
expression “pull the plug” is sometimes
used in these cases, but it hardly does jus-
tice to the legal, medical, and emotional
issues involved.)

All parties stipulated that Karen was incompetent and that she was not
dead by either the classical medical definition of death (cessation of circula-
tion and respiration) or the definition of brain death (permanent cessation of
all brain functions, including those of the brain stem; see Legal Brief). At the
time, New Jersey did not have a statutory definition of death, and there were
no judicial decisions on the concept of brain death, although Karen would not
have met the criteria for death—no matter how it would have been measured.

The trial court denied Mr. Quinlan’s requests for guardianship and
termination of the respirator.48 On appeal,
the New Jersey Supreme Court held that
Mr. Quinlan was entitled to be appointed
guardian of his daughter, could select a
physician of his choice to care for her, and
could participate with this physician and
the hospital’s medical ethics committee
in a decision to withdraw the respirator.
The legal basis for the decision was the
patient’s right of privacy, which gave her
(through her guardian) the right to decline

The court went on to rule that
when a patient is incompetent and cannot
express her wishes, the guardian may use
the substituted judgment doctrine—that
is, the guardian must determine what
the patient herself would decide under the

Legal Brief

Persistent vegetative state (PVS) is a condition in
which the patient is alive and appears to be awake
but has no detectable awareness. It is a permanent
organic brain syndrome resulting from prolonged
anoxia (lack of oxygen to the brain) and character-
ized by the absence of higher mental functions
such as thought, reason, and emotion. The PVS
patient is incapable of performing voluntary acts
and responds only reflexively to external stimuli.
There is some controversy about whether the con-
dition is reversible, but no case of recovery from
PVS has been documented.

Legal Brief

Physicians have no legal or ethical duty to treat a
dead body. Seemingly obvious, this rule becomes
relevant when determining the point at which a
person is dead and life support systems may be
disconnected. The common law defined death as
the “cessation of life,” which is not a particularly
helpful standard. Until the 1970s, death meant the
cessation of respiration and circulation. With the
use of mechanical respirators and other devices,
however, respiration and circulation can often be
continued indefinitely. For this reason, most states
have adopted brain death—the complete cessa-
tion of all functions of the entire brain, including
the brain stem—as the legal standard for diagnos-
ing death.

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circumstances, not necessarily what the guardian thinks is in the patient’s
best interests or what the guardian would want for himself. To guard against
possible abuse, the court required the guardian and the attending physicians
to consult with a hospital ethics committee, which would review the medical
evidence and render an opinion about the probability that the patient would
emerge from her chronic vegetative state.

In summary, the court held that if Mr. Quinlan, the attending physi-
cians, and the hospital’s ethics committee concurred, Karen’s life support
system could be withdrawn without incurring civil or criminal liability, the
fear of which was the reason for the physicians’ refusal. Having received the
judicial imprimatur they were seeking and the ethics committee’s approval,
the physicians weaned Karen from the respirator; however, she unexpect-
edly continued to breathe on her own. For the next nine years, she received
antibiotics to ward off infection and was fed a high-calorie diet through a
nasogastric tube. She died in 1985.

Other courts have followed Quinlan and adopted the substituted
judgment standard. Superintendent of Belchertown State School v. Saikewicz
applied it in the case of a 67-year-old man (Saikewicz) who had always been
profoundly mentally retarded (he had an IQ of 10 and a mental age of less
than 3). He was suffering from an acute form of leukemia for which che-
motherapy was the indicated treatment. The state institution where he lived
petitioned the court for appointment of a personal guardian and of a guard-
ian ad litem (for the litigation) to decide what treatment he should receive.

His illness was incurable, and without chemotherapy he would die
a relatively painless death within weeks or months. With chemotherapy, he
had a 30 to 40 percent chance of remission (abatement of symptoms), but if
remission occurred it would last for only 2–13 months. The chemotherapy
would not cure the illness and was expected to cause serious and painful side
effects. The guardian ad litem thought that withholding treatment would be
in the patient’s best interests; he stated:

If [Saikewicz] is treated with toxic drugs he will be involuntarily immersed in a

state of painful suffering, the reason for which he will never understand. Patients

who request treatment know the risks involved and can appreciate the painful side

effects when [those side effects] arrive. They know the reason for the pain and their

hope makes it tolerable.49

The probate judge weighed the factors for and against chemotherapy
and concluded that treatment should be withheld. Weighing in favor of treat-
ment were the facts that most people would elect chemotherapy and that
chemotherapy would offer the patient a chance for a longer life. Weighing
against treatment were the patient’s age, the probable side effects, the slim

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chance of remission versus the certainty that the treatment would cause suf-
fering, the patient’s inability to cooperate with those administering the treat-
ment, and the patient’s quality of life if the treatment was successful.

Adopting the Quinlan standard, the appellate court approved of the
probate judge’s decision, convinced that it “was based on a regard for [Saike-
wicz’s] actual interests and preferences” and was supported by the facts of
the case. However, the court rejected any analysis that would equate quality
of life with the value of a life. It interpreted the judge’s reference to “qual-
ity of life” “as a reference to the continuing state of pain and disorientation
precipitated by the chemotherapy treatment.”50

Cases involving people who, like Saikewicz, have never been compe-
tent and have never been able to express their intentions demonstrate that
the substituted judgment doctrine is pure fiction. Surrogate decision makers
cannot possibly know what such a patient’s “actual interests and preferences”
would be. The guardians may be well intentioned and may actually make
decisions in the patient’s best interests, but any such decisions are subjective
and—consciously or not—are based on the values, biases, and experiences of
the proxy decision makers (see Legal Brief).

In the years immediately following Quinlan, numerous cases addressed
the questions of who could make decisions for incompetent patients and
whether the courts must be involved in all cases. The Quinlan court believed
that routine involvement by the courts would be “impossibly cumbersome,”
and most other courts have agreed. Of course, when the patient has no fam-
ily or guardian, or when family members disagree about what action to take,
the courts are proper forums for resolving the matter. The courts have also
become involved when the views of the family members conflict with those of
the healthcare providers. One such case, Cruzan v. Director, Missouri Depart-
ment of Health,51 was the occasion for the US Supreme Court’s first—and, to
date, only—decision regarding termination of medical treatment for incom-
petent patients.

The case revolves around Nancy Cruzan, a young woman who lay in
PVS at a state hospital as a result of the
injuries she suffered in an automobile acci-
dent. Although she could breathe without
assistance, she had to receive nutrition and
hydration through artificial means. Realiz-
ing over time that she would never regain
her mental faculties, her parents asked
officials at the hospital to remove her feed-
ing tube and allow her to die. When the
hospital refused, the parents filed suit to
compel termination of the treatment. At
trial, evidence was presented that Nancy

Legal Brief

The viewpoint that guardians’ decisions are
influenced by their own beliefs was recognized
in another New Jersey case, Matter of Conroy,
decided the year Karen Quinlan died (1985). The
court stated that determining the patients’ wishes
is impossible and that it is “naïve to pretend that
the right to self-determination serves as the basis
for substituted decision-making.”86

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had “expressed thoughts at age twenty-five in somewhat serious conversa-
tions with a housemate friend that if sick or injured she would not wish to
continue her life unless she could live at least ‘half-way normally.’”52 On the
basis of this evidence, the trial court ordered in favor of the parents.

The state appealed, and the Missouri Supreme Court reversed the
trial court’s findings. Although it recognized the right to refuse treatment
on the basis of the common-law doctrine of informed consent, the Missouri
Supreme Court held that the state had a strong public policy favoring life
over death and that evidence of an individual’s wishes regarding termination
of treatment must be “clear and convincing.” The court found that Nancy’s
“somewhat serious conversation” was not sufficient to meet this standard.
On certiorari, the Missouri Supreme Court’s decision was affirmed on nar-
row grounds, with the US Supreme Court holding that nothing in the US
Constitution “prohibits Missouri from choosing the rule of decision which it
did.” The opinion reads, in part, as follows:

The choice between life and death is a deeply personal decision of obvious and

overwhelming finality. We believe Missouri may legitimately seek to safeguard the

personal element of this choice through the imposition of heightened evidentiary

requirements. It cannot be disputed that the Due Process Clause protects an inter-

est in life as well as interest in refusing life-sustaining medical treatment. Not all

incompetent patients will have loved ones available to serve as surrogate decision

makers. And even where family members are present, “[t]here will, of course, be

some unfortunate situations in which family members will not act to protect a

patient.” A State is entitled to guard against potential abuses in such situations.

Similarly, a State is entitled to consider that a judicial proceeding to make a deter-

mination regarding an incompetent’s wishes may very well not be an adversarial

one, with the added guarantee of accurate fact finding that the adversary process

brings with it. Finally, we think a State may properly decline to make judgments

about the “quality” of life that a particular individual may enjoy, and simply assert

an unqualified interest in the preservation of human life to be weighed against the

constitutionally protected interests of the individual.

In our view, Missouri has permissibly sought to advance these interests

through the adoption of a “clear and convincing” standard of proof to govern such


Following this decision, Cruzan returned to the trial court, where the
judge—after hearing additional testimony—ruled that the evidence was clear
and convincing and thus Nancy’s artificial nutrition and hydration could be
withdrawn. The state’s attorney general declined to appeal, the treatment was
terminated, and Nancy died in a matter of days (see Law in Action on next page).

No other state has a clear-and-convincing standard of proof, and
thankfully most of these difficult, heartrending decisions today are made by

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physicians and family members without
judicial intervention. One notable excep-
tion is the tragic, much publicized, and
highly politicized case of Terri Schiavo.

Terri, a 26-year-old woman from St.
Petersburg, Florida, suffered a cardiac arrest
of undetermined cause on February 25,
1990. Emergency personnel took her to
a local hospital, where she was venti-
lated and given a tracheotomy but never
regained consciousness. A PVS patient, she
survived on nutrition provided through a
feeding tube, received continuous nursing
home care, and had no reasonable likeli-
hood of recovery.

In 1998, Terri’s husband and
guardian Michael petitioned to be allowed
to terminate her life support procedures,
but her parents opposed this decision.
Years of contentious litigation followed,
including 13 Florida appellate court deci-
sions and five orders by the US Supreme

Court (each of which denied certiorari). On October 15, 2003, the feed-
ing tube was removed, but six days later the Florida legislature passed what
came to be known as “Terri’s Law”—a single-purpose, politically motivated
statute intended to permit Governor Jeb Bush to order reinsertion of the
feeding tube. Amid considerable media and public interest, the tube was sub-
sequently reinserted. After more legal maneuvering (Terri’s parents opposed
her husband’s decisions at every turn), the Florida Supreme Court unani-
mously held Terri’s Law to be unconstitutional.

The case returned to the lower courts for more procedural squabbling,
more efforts by conservative Republicans
and others to overturn the judicial decision,
and even an attempt by Congress to hold
hearings and thus delay the outcome (see
Legal Brief). In the end, the trial court’s
order to discontinue artificial nutrition and
hydration stood, and on March 31, 2005—
more than 15 years after she collapsed
into unconsciousness—Terri died. Thus
concluded one of the longest, saddest, and
most contentious right-to-die cases ever.

Law in Action

Nancy Cruzan’s artificial feeding was discontinued
in mid-December 1990. Fifteen members of Opera-
tion Rescue (an antieuthanasia group), including
a nurse, appeared at the hospital to reinsert the
feeding tube, but they were arrested. Nancy died
on December 26, 1990, more than seven years
after her auto accident.

The Cruzan family’s chief antagonist through-
out the ordeal was Missouri Attorney General
William L. Webster. He was nominated to run for
governor in 1992, but his campaign was marked
by allegations of corruption and he lost the elec-
tion. The following year, Webster pleaded guilty
to embezzlement charges stemming from his han-
dling of a workers’ compensation fund while he
was attorney general. He was sentenced to two
years in prison.

Nancy’s father, depressed and apparently
overwhelmed by grief, took his own life in 1996.

Legal Brief

The Florida Supreme Court’s decision is provided
at some length in The Court Decides: Bush v. Schi-
avo at the end of this chapter, not only because
it ended the legal phase of this family’s long mis-
fortune but also because of the insights it offers
on the separation of powers in the US system of

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Consent Issues for Minors

As previously noted, an emergency involves an immediate threat to life or
health that would cause permanent injury or death if treatment were delayed,
so express consent is not necessary. The medical advisability of treatment in
itself does not create an emergency if a delay to obtain consent would not
permanently harm the patient. When the patient is a minor, physicians and
hospital staff should normally make a reasonable effort to reach the parents
(or the person standing in a parental relationship) if they have an opportunity
to do so. If they decide to treat the minor without the parents’ consent, the
medical emergency should be documented and supported by professional

Though more than a century old, the case of Luka v. Lowrie is most
illustrative of a situation involving consent for treatment of a minor.54 A
15-year-old Michigan boy was hit by a train, and his left foot was “mangled
and crushed.” He was taken to a hospital and within a few minutes lapsed
into unconsciousness. Five physicians examined him and decided that to
save his life they would have to amputate his foot. Dr. Lowrie, one of the
defendants, inquired about the parents’ or other relatives’ whereabouts. On
learning that no one was available, and seeing the emergent nature of the
situation, “the foot was amputated and the patient recovered.”

In the subsequent malpractice suit, the patient claimed “that his foot
should not have been amputated at all, and particularly that it should not
have been amputated without first obtaining his consent or the consent of
his parents, who went to the hospital as soon as possible after learning of the

The trial court heard testimony from the plaintiff ’s experts, who testi-
fied that it was possible the foot might have been saved without amputation.
On cross-examination, however, they all agreed “that the proper course for a
surgeon to pursue . . . is to consult with another or others, and then exercise
the best judgment and skill of which he is capable.”56 Because Dr. Lowrie
had consulted amid the emergency with four “house surgeons”—all of whom
agreed with his opinion that immediate amputation was necessary—the trial
court directed a verdict for the defendants, and the Supreme Court of Michi-
gan affirmed:

The fact that surgeons are called upon daily, in all our large cities, to operate

instantly in emergency cases in order that life may be preserved, should be con-

sidered. Many small children are injured upon the streets in large cities. To hold

that a surgeon must wait until perhaps he may be able to secure the consent of

the parents before giving to the injured one the benefit of his skill and learning, to

the end that life may be preserved, would, we believe, result in the loss of many

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lives which might otherwise be saved. It is not to be presumed that competent

surgeons will wantonly operate, nor that they will fail to obtain the consent of

parents to operations where such consent may be reasonably obtained in view of

the exigency. Their work, however, is highly humane and very largely charitable

in character, and no rule should be announced which would tend in the slightest

degree to deprive sufferers of the benefit of their services.57

Age of Majority
Proper consent for the treatment of minors in cases of nonemergency requires
that physicians and hospital personnel first determine the age of majority in their
jurisdiction. Under early common law, the age of majority was 21 years but in
most states is now 18. (Majority is reached the day before the patient’s birth-
day.) In many jurisdictions, married persons are considered adults—regardless
of age—and parents who are minors may consent to the treatment of their chil-
dren. The statutory and case law of each jurisdiction must be consulted to deter-
mine the age and circumstances necessary to have legal permission to consent.
Hospitals should have clear policies outlining the age of majority for their states.

Emancipated Minors
Most states have statutes that provide for the emancipation of minors from
the “disability of age.” California, for example, provides the following:

A person under the age of 18 years is an emancipated minor if any of the following

conditions is satisfied:

(a) The person has entered into a valid marriage, whether or not the marriage

has been dissolved.

(b) The person is on active duty with the armed forces of the United States.

(c) The person has received a declaration of emancipation pursuant to [another

provision of the California Family Code].58

California also has a provision specifically allowing minors to consent to their
own medical or dental care if they are aged 15 or older, are living apart from
their parents, and are managing their own financial affairs.59

Mature Minors
A common-law doctrine at work in a few states allows mature minors to con-
sent to medical procedures on their own initiative. For example, the Supreme
Court of Tennessee adopted the “mature minor exception” to the parental
consent requirement in the case of a patient who was nearly 18 years old at
the time she sought treatment. The court wrote as follows:

Whether a minor has the capacity to consent to medical treatment depends

upon the age, ability, experience, education, training, and degree of maturity or

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judgment obtained by the minor, as well as upon the conduct and demeanor of

the minor at the time of the incident involved. Moreover, the totality of the circum-

stances, the nature of the treatment and its risks or probable consequences, and

the minor’s ability to appreciate the risks and consequences are to be considered.

Guided by the presumptions in the Rule of Sevens, these are questions of fact for

the jury to decide.

In our opinion, adoption of the mature minor exception to the general com-

mon law rule [requiring parental consent] would be wholly consistent with the

existing statutory and tort law in this State as part of “the normal course of the

growth and development of the law.” Accordingly, we hold that the mature minor

exception is part of the common law of Tennessee. Its application is a question of

fact for the jury to determine whether the minor has the capacity to consent to and

appreciate the nature, the risks, and the consequences of the medical treatment


The basis for the common-law rule that a parent’s consent is necessary
is the belief that minors are incapable, by reason of their youth, of under-
standing the nature and consequences of their own acts and must therefore
be protected from the folly of their decisions. In terms of intelligence and
insight, however, there is nothing magical about age 18 or 21—or 57, for
that matter. Research reveals no judicial decisions that hold a physician or a
hospital liable for treatment of a mature minor without the parents’ consent
when the treatment was beneficial. Thus, public policy and common sense
permit mature minors—depending on the circumstances—to consent to
some health services.

Physicians and hospitals should encourage minors to involve their
parents in medical decision making, but necessary medical treatment should
never be withheld from a mature and knowledgeable minor solely because
parental consent has not been obtained. Damages for failure to treat might
be far greater than damages for treatment without consent. Accordingly,
providers of medical care should develop
guidelines for the treatment of minors
based on local law, recognized standards
of clinical care, and common sense. State-
ments of professional associations may be
helpful in drafting these policy guidelines
(see Legal Brief).

Infants and Young Minors
In situations involving young minors,
parental consent is clearly necessary (except
in emergencies), and occasionally the ques-
tion arises whether both parents must

Legal Brief

The American Medical Association’s Code of Medi-
cal Ethics, Opinion 5.055, “Confidential Care for
Minors,” states in part that “where the law does
not require otherwise, physicians should permit a
competent minor to consent to medical care and
should not notify parents without the patient’s
consent. Depending on the seriousness of the
decision, competence may be evaluated by physi-
cians for most minors.”

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consent. Normally, the consent of either parent is sufficient, but if the parents
are divorced or voluntarily separated, the consent of the custodial parent is
preferred. Individuals who have temporary custody of a minor child, whether
a relative or not, are not by that fact alone authorized to give consent. Baby-
sitters, therefore, have no authority to consent unless given specific authority
by the minor’s parent. When they are to be away from their children for a
significant length of time, prudent parents notify their regular caregivers and
give the temporary custodians written authorization. Some states have stat-
utes addressing this situation.

Refusal of Consent for Treatment of Minors
If the parent or guardian consents to treatment but a mature minor refuses,
the physician and the hospital should not proceed; if mature minors are
capable of giving consent, they are also capable of refusing and should be
treated as adults. If the tables are turned—the mature minor consents, but
the parents refuse—the minor’s wishes should still trump the parents’. In
both situations, an effort should first be made to resolve the conflict. (Disre-
garding the interests of a nonpatient involves less legal risk than disregarding
the interests of a patient, especially if the treatment is relatively routine.)

If the parent refuses to consent to treatment of a minor who is inca-
pable of expressing consent, the situation poses greater practical, ethical, and
legal difficulties, especially when serious consequences attend the decision. If
the patient’s condition is too serious to delay treatment until a court order
is obtained, the physician and the hospital should proceed with treatment
despite parental objections. In situations in which life or health is at stake,
humanitarian action to save life is preferable to inaction that may cause death
(even if technically the parents may have a viable cause of action). In most of
these situations, parents filing suit would be able to receive only small dam-
ages, if any. Defense attorneys have a stronger argument if their client tried to
save a life rather than stood by passively and watched a child suffer and die.

If clinical judgment favors treatment but the patient’s condition will
not be seriously harmed by a delay, and if no parental consent is forthcoming,
the physician or the hospital should seek a court order. The delay may not be
long; it will depend on local procedure and on the working relations that the
medical personnel and attorneys have developed with the court. Judges have
been known to act quickly and at all hours when necessary.

Under the early common law, parents’ refusal to consent was not
considered neglect and courts had little power to order medical care for a
minor over the parents’ objections. All states now have statutes granting
the appropriate court jurisdiction to protect the interests of dependent and
neglected children. These protective statutes differ, but in general the state,
a social agency, a hospital, a physician, and even relatives of a neglected child

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may petition the court for an order to remove the child from the parents’
custody and assign a court-appointed guardian. Most of these statutes also
require that suspected child neglect or abuse be reported to the appropriate
authorities. Thus, the physician and hospital have an affirmative duty toward
a child who needs medical care.

These statutes are a valid exercise of the state’s power to protect the
general health and welfare of society. Hence, they are constitutional, even
when their application conflicts with or violates the parents’ religious beliefs.
In State v. Perricone,61 the New Jersey Supreme Court affirmed a trial court’s
order that a blood transfusion be performed on an infant child whose par-
ents were Jehovah’s Witnesses. With respect to the constitutional issue of the
parents’ religious freedom, the court said that

the [First] Amendment embraces two concepts—freedom to believe and freedom

to act. The first is absolute, but, in the nature of things, the second cannot be. The

right to practice religion freely does not include the liberty to expose . . . a child

. . . to ill health or death. Parents may be free to become martyrs themselves. But

it does not follow they are free, in identical circumstances, to make martyrs of their

children before they have reached the age of full and legal discretion when they

can make that choice for themselves.62

Decisions in these types of cases turn on whether parental refusal to
consent to medical care for a child fits the state’s definition of child neglect.
Other factors include the medical condition of the child, whether an emer-
gency is present, the probable outcome if treatment is withheld, the child’s
age, whether the child’s wishes have been considered (even though he is a
minor), and the basis for parental refusal. Even in states whose statutes do
not explicitly consider refusal to consent as child neglect, most courts have
readily found it to be so and have upheld orders for treatment. In Jefferson
v. Griffin Spalding County Hospital Authority, statutory protection was even
extended to an unborn child; overriding the religious objections of the preg-
nant woman, the court transferred custody to the state, and a cesarean sec-
tion was ordered to save the child’s life.63

Disabled Newborns
Infants are in the same legal position as other immature minors: The parents
are authorized to consent or withhold consent to treatment as long as they
are competent to do so and their actions do not constitute neglect of their
child. However, modern technology is keeping alive newborn infants who,
just a few years ago, would not have survived because of low birth weight
or severe birth defects. Decisions to administer or withhold treatment for
these newborns can be extremely difficult. Whether a decision to withhold or

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withdraw treatment constitutes neglect or is medically, ethically, and legally
sound is not always clear. Furthermore, the same questions that arise for
incompetent adults arise for infants: Who should make such decisions, and
what standards should prevail?

If treatment is available that would clearly benefit an ill newborn—par-
ticularly if such treatment is necessary to save the child’s life or prevent seri-
ous, permanent consequences—those providing medical care should respond
to the parents’ refusal in the manner suggested in the previous section. If
time permits, a court order should be sought; if it does not, the child should
be treated despite the parents’ objections. A third alternative is to render
sufficient treatment to keep the child alive, pending judicial decisions about
future treatment.

Infants with terminal illnesses or those in PVS have the same rights as
incompetent adults with such conditions. Ordinarily, the parents or guardians
may have treatment withheld or discontinued if further treatment would be
clearly futile or inhumane. In re L.H.R. involved a terminally ill infant who
was in PVS, and the court found that a life support system was prolonging
the dying process rather than the infant’s life.64 The court ruled that the
right of a terminally ill person to refuse treatment was not lost because of
incompetence or youth. The parent or legal guardian could exercise the right
on the child’s behalf after the attending physician’s diagnosis and prognosis
were confirmed by two other physicians who had no interest in the outcome.
The court did not require review by either an ethics committee or a court.65

Newborns with serious birth defects or extremely low birth weight
raise more difficult issues. For example, the proposed treatment may be ben-
eficial, even lifesaving, but will leave the infant with a disability. The disability
might be caused by the treatment itself (e.g., blindness from the adminis-
tration of oxygen), or it might result from an existing condition, such as
Down syndrome or spina bifida. In other cases, the proposed therapy might
be neither clearly beneficial nor clearly futile: The child might survive with
therapy but has only a dim chance of living a long life and likely will suffer.
In making these difficult decisions, parents or other surrogates must be fully
informed of the medical alternatives and the prognosis, and all means must
be used to ensure that such children are protected from decisions that are
clearly contrary to their best interests.

The well-publicized case of Baby Doe focused national attention on
the manner of deciding whether to treat seriously ill newborns.66 In 1982, a
boy was born in Indiana with Down syndrome and a surgically correctable
condition that prevented him from eating normally. His parents discussed
his care with attending physicians and decided not to consent to the correc-
tive surgery. Food and water were also to be withheld. Following a petition
alleging neglect, a hearing was held within days. The probate court found
that his parents were not neglectful but had made a reasonable choice among

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acceptable medical alternatives. Before an attempted appeal could be pro-
cessed, Baby Doe died. Thereafter, the parents’ decision was widely criticized
as being against the best interests of the child.

Another notorious case involved Baby Jane Doe (see chapter 9).67 The
infant was born in 1983 with spina bifida and other serious disorders. Surgery
is the usual corrective treatment in such cases, but her parents—after lengthy
consultation with neurological experts, nurses, religious counselors, and a
social worker—chose to forgo surgery and adopt a more conservative course
of treatment. When this decision was challenged in court, physicians testified
during the hearing that the parents’ choice was “well within accepted medical
standards.” The trial court opined that the child was being deprived of ade-
quate medical care and that her life was in “imminent danger,” but an appel-
late court reversed the decision. According to the higher court, the record
contained no evidence supporting the lower court’s finding; instead, the two
physicians who testified had agreed “that the parents’ choice of a course of
conservative treatment, instead of surgery, was well within accepted medical
standards and that there was no medical reason to disturb the parents’ deci-
sion.” The appellate court concluded, “This not a case where an infant is
being deprived of medical treatment to achieve a quick and supposedly mer-
ciful death. Rather, it is a situation where the parents have chosen one course
of appropriate medical treatment over another” (see Legal Decision Point).68

Cases such as these created a great deal of discussion and legislative
activity for a number of years. For example, the federal Child Abuse Treatment
and Prevention Act now provides that a state may receive federal grant money
only after it establishes procedures and programs for responding to reports of
medical neglect, including reports of withholding medically indicated treat-
ment for disabled infants with life-threatening illnesses. The act defines with-
holding as “the failure to respond to the infant’s life-threatening conditions by
providing treatment (including appropriate nutrition, hydration, and medica-
tion) which, in the treating physician’s (or physicians’) reasonable medical
judgment, will be most likely to be effective in ameliorating or correcting all
such conditions.”69 Exceptions are allowed
if the infant is irreversibly comatose and if
the treatment would merely delay death;
would not correct all of the life-threatening
conditions or would otherwise do nothing
to help save the child’s life; or would be
futile and, under the circumstances, inhu-
mane.70 Various states have also passed laws
covering medical treatment for newborns
and other children.

Decisions concerning treatment for
seriously ill newborns are clearly no longer

Legal Decision Point

The Baby Jane Doe case was decided in large part
on the basis of medical opinion that the parents’
decision to refuse treatment was medically accept-
able. Are such decisions ones for medical experts
to make? What other disciplines are relevant?
What makes a decision “medically acceptable”? Is
a medically acceptable decision necessarily a mor-
ally acceptable one?

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immune from public scrutiny. Hospitals, physicians, and parents have posi-
tive duties to act in a child’s best interests. In the past, hospitals or physicians
could look the other way if a parent refused consent for necessary care; today,
the law imposes a duty to act. As in the case of incompetent adults, hospitals
must consult with their attorneys to ascertain the applicable state and federal
laws and develop procedures for complying with those laws.

Legislation and Protocols on End-of-Life Issues
Brain Death
As medical science advanced in the 1960s and 1970s, decisions at the end of
life presented some vexing legal and ethical questions. One of the first was
how to define death, given that respirators are able to keep a body “alive”
even after the brain ceases to function. Legislatures responded by adopting
some version of the Uniform Determination of Death Act (UDDA), which
provides that “an individual who has sustained either (1) irreversible cessa-
tion of circulatory and respiratory functions, or (2) irreversible cessation of all
functions of the entire brain, including the brain stem, is dead. A determina-
tion of death must be made in accordance with accepted medical standards.”71

“Uniform” laws are model statutes proposed by the Uniform Law
Commission for adoption by state legislatures. The UDDA definition has
now been adopted in one form or another in virtually every state, either by
statute, regulation, or judicial decision.

Advance Directives
Next came cases such as Quinlan and Cruzan, in which the patient was
clearly alive but was in a persistent coma (or even a state of seeming wakeful-
ness) but subsisted on artificial means of life support. Legislatures enacted
“natural death” acts and “living will” statutes aimed at allowing terminally ill
patients to die with dignity. These laws’ approaches to the issue and the types
of cases they cover vary from state to state, but they offer guidance and some
measure of protection to those who face troubling end-of-life situations.

California was the first to pass such a statute. It provided that com-
petent adults could execute a directive—commonly called a living will—to
instruct their physician to withhold or withdraw certain life-sustaining proce-
dures in the event of a terminal illness. The law was intended to be a model
on which other states could base their own statutes, but soon the courts
discovered that the lawmakers had not anticipated the many difficult situa-
tions that the living will documents did not address. For example, because
the California statute contemplated only terminal illness, living wills provided
no succor for individuals such as Karen Quinlan or Nancy Cruzan, whose
conditions were not terminal but for whom medical technology was not
therapeutic. Living wills also did not assist persons who failed to sign them.

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To remedy some of the shortcomings of the living will laws, many
states developed durable power of attorney (DPOA) statutes allowing indi-
viduals to designate a proxy who will make healthcare decisions for them
if they become incompetent (see Legal Brief). The proxy’s decisions are as
valid as the decisions the patient would have made had she been competent.
On behalf of the patient, and applying the substituted judgment doctrine
discussed earlier, a proxy can consent to or refuse treatments as though the
patient were doing so herself. Physicians who rely in good faith on the deci-
sions of the proxy are provided immunity from civil and criminal liability and
professional disciplinary action.72

The DPOA laws resolved some of the shortcomings of living wills,
but they still required people to take affirmative action to sign the DPOA
document and varied from state to state. In the early 1990s, a statutory
framework called the Uniform Health-Care Decisions Act (UHCDA) was
proposed by the National Conference of Commissioners on Uniform State
Laws and backed by the American Bar Association. Adopted by a number of
states, this model statute

• affirms an individual’s right to decline life-sustaining treatment;
• lets the principal designate an agent to make decisions the principal

would make if he were competent;
• is flexible enough to allow the principal to give instructions as broadly

or as narrowly as she may choose;
• permits designated surrogates, family members, or close friends to

make decisions if no agent or guardian has been appointed;
• allows states to replace their various pieces of legislation with one

• provides an easily understood model form to simplify the directive

• requires healthcare providers to comply with the patient’s or agent’s

instructions; and
• lays out a dispute resolution

process to be used in the event of

A sample UHCDA-model advance direc-
tive form is shown in appendix 11.1.

Death with Dignity Laws
In addition to living wills and durable
powers of attorney as tools to assist in
end-of-life situations, six states now allow

Legal Brief

A regular power of attorney gives an agent the
authority to act on behalf of a principal, but it
ceases to be effective in the event of the principal’s
death or disability. A durable power of attorney
(either for financial or healthcare affairs) is effec-
tive as long as the principal is alive, even if she is

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physicians to aid competent, terminally ill
patients to end their own lives (see Legal
Brief). Oregon’s statute was the first of
such laws, and it serves as a model for

Under the Oregon law, a compe-
tent adult resident of the state who has
been diagnosed with a terminal illness
that will lead to death within six months
may request a licensed physician (doctor
of medicine or doctor of osteopathy) to
prescribe medications to end life. If certain

procedural safeguards are met—such as a second physician confirming that
the patient meets statutory criteria—the individual may self-administer the
medications (usually barbiturates). According to the state’s department of
health, in the 17 years since the law was enacted, 1,545 people have been
provided with prescriptions written for life-ending medications and 991
patients have died from ingesting them.74

The Oregon law was opposed by “right to life” groups, conservative
members of Congress, and the George W. Bush administration. The issue
went to court in 2001 after Attorney General John Ashcroft attempted to
investigate and prosecute physicians who prescribed controlled drugs to help
terminally ill patients die. The statute was upheld by the trial court, which
ruled that the US Department of Justice lacked authority to overturn a state
law. The Ninth Circuit agreed, and the case then headed to the US Supreme

On January 17, 2006, Justice Anthony Kennedy delivered the
Supreme Court’s decision affirming the lower courts.75 In his opinion, Ken-
nedy ruled that although the attorney general has rulemaking power under
the Controlled Substances Act (CSA), “he is not authorized to make a rule
declaring illegitimate a medical standard for care and treatment of patients
that is specifically authorized under state law.”76 Kennedy added, “The
authority claimed by the Attorney General is both beyond his expertise and
incongruous with the statutory purposes and design [of the CSA].”77 Thus
the court deferred to the state’s determination that use of controlled sub-
stances to end life can be considered a legitimate medical purpose.

Despite other attempts in Congress to derail it, the Oregon Death
with Dignity Act has been a stable part of Oregon law ever since the Supreme
Court ruling. A study conducted in 2013 showed that is the act is supported
by about 80 percent of Oregon voters.78

The California law, known as the End of Life Option Act,79 took effect
on June 9, 2016. Like the Oregon law, the California statute was quickly

Legal Brief

At the time of publication, physician-assisted dying
laws were in effect in Oregon (permitted since late
1997), Washington (2009), Vermont (2013), Cali-
fornia (June 2016), and Colorado (by referendum,
November 2016). In Montana, physician assistance
in dying has been legal since 2009 under a ruling
of the state supreme court.

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challenged in court. The plaintiffs in the case—a number of physicians,
the American Academy of Medical Ethics (doing business as the Christian
Medical and Dental Society), and Life Legal Defense Foundation—sought
an injunction against the law on various grounds, most especially because of
a provision stating that actions taken under the law do not “constitute suicide,
assisted suicide, homicide, or elder abuse.”80 At time of writing (September
2016), the case is pending but the motion for preliminary injunction has
been denied. Irrespective of the ultimate outcome in the trial court, an appeal
will certainly ensue. Stay tuned.

The National POLST Paradigm
Another important development is a movement to adopt forms that convert
patients’ preferences for end-of-life care into enforceable medical orders.
Issued by a physician or other licensed practitioner, these portable orders are
valid in multiple care settings, including acute care hospitals, long-term care
facilities, and hospices. The Physician Orders for Life-Sustaining Treatment
(POLST), called by various other names in different states, is an effort by the
medical and legal communities to overcome the limitations of legal docu-
ments such as living wills and advance directives.

Begun in Oregon and now used or being developed in a number of
states,81 POLST is described on the National POLST Paradigm Task Force
(NPPTF) website in these terms:

1. The POLST Form is a set of medical orders, similar to the do not resuscitate

(allow natural death) order. POLST is not an advance directive. POLST does

not substitute for naming a health care agent or durable power of attorney

for health care.

2. A POLST Paradigm Form is not for everyone. Only those who are seriously ill

or frail, or for whom their physicians would not be surprised if they died in

the next year, should have one.

3. The POLST Form is completed as a result of the process of informed, shared

decision-making. During the conversation, the patient discusses his or her

values, beliefs, and goals for care, and the health care professional presents

the patient’s diagnosis, prognosis, and treatment alternatives, including the

benefits and burdens of life-sustaining treatment. Together they reach an

informed decision about desired treatment, based on the person’s values,

beliefs and goals for care.

4. The POLST Form allows patients to have their religious values respected.

For example, the POLST Form allows Catholics to make decisions consistent

with the United States Conference of Catholic Bishops Ethical and Religious

Directives for Catholic Health Care Services, 5th ed. (2009) and ensures that

those decisions will be honored in an emergency and across care transitions.

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5. The POLST Form enables physicians to order treatments patients would

want and to direct that treatment that patients would not want, those they

consider “extraordinary” and excessively burdensome, shall not be provided.

6. The POLST Form requires that “ordinary” measures to improve the patient’s

comfort and food and fluid by mouth, as tolerated, are always provided.

7. The POLST Form is actionable and prevents initiation of unwanted,

disproportionately burdensome extraordinary treatment.

8. State law authorizes certain health care professionals to sign medical

orders; the POLST Form is signed by those health care professionals who are

accountable for the medical orders.

9. The POLST Paradigm requires health care professionals be trained to conduct

shared decision-making discussions with patients and families so that POLST

Forms are completed properly.

10. The POLST Form may be signed by the patient or designated decision-maker

. . . but it is not required in all states. The NPPTF encourages patient or

designated decision-maker signatures for all states seeking endorsement.

Informed, shared decision making is a key component of the POLST Paradigm


11. The POLST Paradigm recognizes that allowing natural death to occur is not

the same as killing. POLST does not allow for active euthanasia or physician

assisted suicide.82

A sample POLST paradigm form is shown in appendix 11.2. Forms in
other states are virtually identical. Depending on the wording of existing
legislation, questions about the use of POLST forms may be encountered in
some jurisdictions, but most states have either endorsed or are developing a
POLST program and would be unlikely to prohibit use of the forms.

All healthcare providers should have procedures for handling end-of-life
decisions for patients in accordance with the laws of their state and the patients’ or
surrogates’ instructions. Licensed practitioners should discuss treatment options
while the patient has capacity, especially if the illness is considered terminal.
The practitioner can call the patient’s attention to options for end-of-life care,
advance directives, and designation of a surrogate and can then issue enforceable
medical orders consistent with the patient’s wishes. These orders, the relevant
discussions and decisions, and copies of an advance directive, DPOA, POLST,
or other such document must be included in the medical record.

Patient Self-Determination Act
The Patient Self-Determination Act of 1991 (PSDA)83 is a federal law that
requires facilities that receive federal funding to summarize the facility’s
policies regarding advance directives, advise patients of their right to make

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medical decisions, and obtain and include in the medical record any such
documents the patient might have executed. The PSDA also requires that
facility staff be educated about these issues and never discriminate against
patients on the basis of whether they do or do not have advance directives.
These procedures are now a routine part of the patient registration process.


This chapter explores the difference between consent (a concept that arose
from the law of battery) and informed consent (a concept that relates to the
standards of medical practice). If a patient’s consent to a medical procedure
is not well informed, it is not consent at all. For consent to be informed, the
patient or legal surrogate must have a basic understanding of the patient’s
diagnosis and prognosis, the nature of the proposed treatment, the inherent
risks, any possible alternative treatments, and the risks of refusing treatment.
The chapter also considers consent issues in emergencies and such thorny
issues as the right to die (i.e., refusal to consent to life-sustaining treatment)
and consent for patients who are not competent to make choices for them-
selves (including infants and young children). The chapter ends with discus-
sion of various methods of documenting and enforcing patients’ end-of-life
preferences: living wills, DPOA, advance directive, POLST, and PSDA.

Discussion Questions

1. What are the two types of consent for medical treatment? When does
each apply?

2. What is the standard for consent in an emergency?
3. What is the hospital’s role in obtaining informed consent?
4. What is required for informed consent to be valid?
5. What is the parallel between Helling v. Carey in chapter 5 and the

cases in this chapter that disapprove of the reasonable-doctor rule for
informed consent?

6. How does the principle of informed consent apply to competent
patients who refuse lifesaving treatment? How does it apply to
incompetent patients who have signed an advance directive?

7. How does informed consent apply to someone who had not signed an
advance directive? To a newborn? To a mature minor?

8. Under what circumstances may consent be refused for the artificial
administration of nutrition and hydration?

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9. What are the advantages and disadvantages of living wills, DPOA for
healthcare, statutory advance directives, and POLST?

10. What are the requirements of the PSDA?
11. What is the status of the “assisted death” issue in your state, and how

do you feel about it?

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The Cour t Decides

Cobbs v. Grant
8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972)

Mosk, J.

This medical malpractice case involves two
issues: first, whether there was sufficient
evidence of negligence in the performing of
surgery to sustain a jury verdict for plaintiff;
second, whether, under plaintiff ’s alternative
theory, the instructions to the jury adequately
set forth the nature of a medical doctor’s duty
to obtain the informed consent of a patient
before undertaking treatment. We conclude
there was insufficient evidence to support
the jury’s verdict under the theory that the
defendant was negligent during the opera-
tion. Since there was a general verdict and
we are unable to ascertain upon which of the
two concepts the jury relied, we must reverse
the judgment and remand for a new trial. To
assist the trial court upon remand we ana-
lyze the doctor’s duty to obtain the patient’s
informed consent and suggest principles for
guidance in drafting new instructions on this

Plaintiff was admitted to the hospital
in August 1964 for treatment of a duode-
nal ulcer. He was given a series of tests to
ascertain the severity of his condition and,
though administered medication to ease
his discomfort, he continued to complain of
lower abdominal pain and nausea. His family
physician, Dr. Jerome Sands, concluding that
surgery was indicated, discussed prospective
surgery with plaintiff and advised him in gen-
eral terms of the risks of undergoing a gen-
eral anesthetic. Dr. Sands called in defendant,
Dr. Dudley F. P. Grant, a surgeon, who after
examining plaintiff, agreed with Dr. Sands
that plaintiff had an intractable peptic duo-
denal ulcer and that surgery was indicated.

Although Dr. Grant explained the nature of
the operation to plaintiff, he did not discuss
any of the inherent risks of the surgery.

A two-hour operation was performed the
next day, in the course of which the presence
of a small ulcer was confirmed. Following
the surgery the ulcer disappeared. Plaintiff ’s
recovery appeared to be uneventful, and he
was permitted to go home eight days later.
However, the day after he returned home,
plaintiff began to experience intense pain
in his abdomen. He immediately called Dr.
Sands who advised him to return to the hos-
pital. Two hours after his readmission plaintiff
went into shock and emergency surgery was
performed. It was discovered plaintiff was
bleeding internally as a result of a severed
artery at the hilum of his spleen. Because
of the seriousness of the hemorrhaging and
since the spleen of an adult may be removed
without adverse effects, defendant decided to
remove the spleen. Injuries to the spleen that
compel a subsequent operation are a risk
inherent in the type of surgery performed on
plaintiff and occur in approximately 5 percent
of such operations.

After removal of his spleen, plaintiff
recuperated for two weeks in the hospital.
A month after discharge he was readmitted
because of sharp pains in his stomach. X-rays
disclosed plaintiff was developing a gastric
ulcer. The evolution of a new ulcer is another
risk inherent in surgery performed to relieve
a duodenal ulcer. Dr. Sands initially decided
to attempt to treat this nascent gastric ulcer
with antacids and a strict diet. However,
some four months later plaintiff was again


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T h e L a w o f H e a l t h c a r e A d m i n i s t r a t i o n416

hospitalized when the gastric ulcer continued
to deteriorate and he experienced severe
pain. When plaintiff began to vomit blood
the defendant and Dr. Sands concluded that
a third operation was indicated: a gastrec-
tomy with removal of 50 percent of plaintiff ’s
stomach to reduce its acid-producing capac-
ity. Some time after the surgery, plaintiff was
discharged, but subsequently had to be hos-
pitalized yet again when he began to bleed
internally due to the premature absorption
of a suture, another inherent risk of surgery.
After plaintiff was hospitalized, the bleed-
ing began to abate and a week later he was
finally discharged.

Plaintiff brought this malpractice suit
against his surgeon, Dr. Grant. The action
was consolidated for trial with a similar
action against the hospital. The jury returned
a general verdict against the hospital in
the amount of $45,000. This judgment has
been satisfied. The jury also returned a gen-
eral verdict against defendant Grant in the
amount of $23,800.

He appeals.
The jury could have found for plaintiff

either by determining that defendant neg-
ligently performed the operation, or on the
theory that defendant’s failure to disclose
the inherent risks of the initial surgery viti-
ated plaintiff ’s consent to operate. Defendant
attacks both possible grounds of the verdict.
He contends, first, [that] there was insuf-
ficient evidence to sustain a verdict of neg-
ligence, and, second, [that] the [trial] court
committed prejudicial error in its instruction
to the jury on the issue of informed consent.

[In the first section of the opinion, the
court agrees with the defendant’s argument
that the evidence did not justify a verdict of
negligence. Because of the general verdict,
the court could not determine on which basis
the jury found for the plaintiff. Accordingly,
the court reverses the judgment and orders
a retrial. In the second section, the court
finds that the failure to provide information

on which to make an informed consent deci-
sion—although technically a battery—is
really a case of professional malpractice (i.e.,
negligence). The opinion then segues into a
discussion of the standard of care in these
kinds of cases.]

Since this is an appropriate case for the
application of a negligence theory, it remains
for us to determine [whether] the standard of
care described in the jury instruction on this
subject properly delineates defendant’s duty
to inform plaintiff of the inherent risks of the
surgery. In pertinent part, the court gave the
following instruction: “A physician’s duty
to disclose is not governed by the standard
practice in the community; rather it is a duty
imposed by law. A physician violates his duty
to his patient and subjects himself to liability
if he withholds any facts which are necessary
to form the basis of an intelligent consent by
the patient to the proposed treatment.”

Defendant raises two objections to the
foregoing instruction. First, he points out
that the majority of the California cases
have measured the duty to disclose not in
terms of an absolute, but as a duty to reveal
such information as would be disclosed by a
doctor in good standing within the medical
community. . . . One commentator has imperi-
ously declared that “good medical practice
is good law.” Moreover, with one state and
one federal exception every jurisdiction that
has considered this question has adopted
the community standard as the applicable
test. Defendant’s second contention is that
this near unanimity reflects strong policy
reasons for vesting in the medical community
the unquestioned discretion to determine
[whether] the withholding of information by a
doctor from his patient is justified at the time
the patient weighs the risks of the treatment
against the risks of refusing treatment.

The thesis that medical doctors are
invested with discretion to withhold infor-
mation from their patients has been fre-
quently ventilated in both legal and medical

(continued from previous page)

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Module 2 Discussion- Consent for “Non-Competent” Parties

In the SLP assignment, we reviewed informed consent in the case of competent adults. There are many “gray” areas of consent in cases of children or incompetent adults; however, the law has sought to provide clear guidance for health care providers and legal guardians.

· Review pages 393-411 in the Showalter textbook and choose at least one of the subtopics in this section regarding consent. Provide an explanation of the “gray area” of your choosing, including any relevant legal cases discussed, and how this is handled under the law.

Showalter, J. S. (2017) Consent. In The Law of Healthcare Administration (pp. 393-411). Chicago, IL: Health Administration Press. Retrieved from the Trident Online Library.

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