Who May Consent
The determination of who has authority to consent
to medical treatment is based on an evaluation of the
competency of the patient. If competent, usually the
patient alone has the authority to consent. Competency
refers to the ability to understand the nature and
consequences of one’s decisions. In the absence of
contrary evidence, it may be assumed that the patient
presenting for treatment is competent. If the patient is
i n c o m p e t e n t , e i t h e r b y r e a s o n o f s t a t u t o r y
incompetence (e.g., a minor) or by reason of a physical
or mental impairment, the inquiry must turn to
whoever has the legal capacity to consent on behalf of
the patient. Parents and guardians will usually have the
authority to consent for their minor child or children.
In many states, though not all, a husband or wife may
give consent for an incompetent spouse. It is the law of
the state in which the hospital is located that controls
the question of “substitute consent.”
Forms of Consent
Consent for medical treatment should be obtained
through an open discussion between the provider and
patient during which the patient expressly agrees to the
procedure. The consent should then be documented by
having the patient sign any appropriate forms and by
the provider noting any important details of the
discussion in the medical record.
In certain limited circumstances, the consent of an
individual to simple medical treatment may be implied
from the circumstances. Implied consent arises by
reasonable inference from the conduct of the patient or
the individual authorized to consent for the patient.
Reliance on this form of consent is strongly
discouraged except in the most routine, risk-free
examinations and procedures.
Witness to Consent
Any competent adult may witness the patient’s
consent. It is preferable that the witness be a staff
member of the hospital who is not participating in the
procedure. It is not advisable for a relative of the
patient to act as a witness.
Duration of Consent
A consent is valid as long as there has been no
material change in the circumstances between the date
that consent was given and the date of the procedure. It
is desirable that a new consent be obtained if there is a
significant time lapse or if the patient has been
discharged and readmitted due to postponement of the
procedure.
INCIDENT REPORTS
When an event occurs that harms an individual,
illustrates a potential for harm, or evidences serious
dissatisfaction by patients, visitors, or staff, then a
risk-management incident has taken place. Examples
of such episodes could include the following:
A patient’s family helps him out of bed despite
directions to the contrary by staff members. The
patient falls and is injured.
Excessive silver nitrate is put into the eyes of a
newborn, impairing vision.
The mother of the child complains about the care
that has been given to her child and informs a
staff member that she is going to talk to her
lawyer about what has happened.
When a member of the staff becomes aware of an
incident, he has a responsibility to make the hospital
command aware of the situation. The mechanism for
doing this is the incident report system. Incident
reports are designed to promptly document all
circumstances surrounding an event, to alert the
commanding officer, quality assurance coordinator,
and other involved administrators and clinicians of a
potential liability situation, and, in a broader sense, to
establish an information base on which to monitor and
evaluate the number and types of incidents that take
place in the facility.
Because incident reports, by their very nature,
contain a great deal of information that would be of
interest to persons filing claims or lawsuits against the
Navy for alleged substandard medical care, and
because the law recognizes the need for hospitals to
have a reliable means of discovering and correcting
problems, most states have enacted laws that make
incident reports confidential. In other words, a person
cannot obtain a copy of an incident report to help in
their legal action against the hospital.
However, incident reports can lose their
“protected” status if they are misused or mishandled. It
is important, therefore, to treat these reports like other
confidential documents. You must strictly limit the
number of copies made and the distribution of the
reports.
Do not include the report in the patient’s
treatment record. The report should be limited to the
facts and must not contain conclusions. Finally, the
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