In Alaska, the law on informed consent is derived largely from common law and
statutes. Court decisions modify and explain the law. The judge in an informed consent
case may instruct the jury that:
“A physician is required to give his patient enough information to make an informed
decision whether or not to undergo the treatment. If the physician does not do so, he
may have to pay for the patient’s injury, even though the treatment itself was
performed with reasonable care.
“For the plaintiff to win on his claim that he did not give his informed consent, you
must decide it is more likely than not that the following things happened:
“1. The treatment was a legal cause of the patient’s injury;
“2. The defendant did not tell the plaintiff about the common risks of or reasonable
alternatives to the treatment; and
“3. The plaintiff, had he known about these common risks and reasonable alternatives,
could not have consented to the treatment given.” [Trial court adaptation of Alaska
Jury Instruction 8.06, partial]
The Alaska Supreme Court has held that a physician is obligated to provide, in
layman’s terms, the information that a reasonable person in the patient’s position
would need to know in order to make an informed and intelligent decision about the
proposed treatment. A physician must disclose all “material” risks. A risk is material
if the probability of that type of harm is a risk a reasonable patient would consider
in deciding on treatment. A physician must not only disclose the identity of all known
material risks, but also the likelihood of their occurrence in meaningful terms.
[Korman v. Mallin, 858 P.2d 1145 (Alaska 1993)]
Alaska law recognizes that on some occasions a candid and thorough disclosure of
information will have an adverse effect on the patient’s condition or health. The law
allows the physician, in his or her discretion, to withhold such information or to
phrase it in a manner that will not upset the patient: “it is a defense to any action
for medical malpractice based upon alleged failure to obtain informed consent that
...the health care provider after considering all of the attendant facts and
circumstances used reasonable discretion as to the manner and extent that the
alternatives or risks were disclosed to the patient because the health care provider
reasonably believed that a full disclosure would have a substantially adverse effect
on the patient’s condition.” [A.S., Section 09.55.556(b)(4)]
The decision to withhold such information is based on a practitioner’s medical
judgment and must be substantiated in order to stand up in a court of law. Three basic
criteria should be taken into account in reaching the conclusion that information
should be withheld or phrased in such a way as to not upset the patient:
1) The physician must take into account the facts and circumstances of the patient’s
case. Included in the evaluation should be the patient’s physical and emotional
condition, whether the patient can assimilate information in a candid and rational
manner, and whether the informed consent process or treatment could be delayed under
the circumstances, among other considerations.
2) The physician must believe that full disclosure of information will probably have a
substantially adverse effect on the patient’s condition. Mild upset of the patient
would not justify failure to provide full disclosure; the patient must be in danger of
significant detriment and impairment of his or her condition.
3) The physician must use reasonable discretion in the manner and extent of
disclosure. If a decision is made against full disclosure, the disclosure must be
tailored to meet the needs of the patient and geared to avoid an adverse impact on the
patient’s well-being. Documentation written at the time is necessary to support the
decision to withhold information. A detailed note in the patient’s health record must
be made by the physician, including the physician’s observations of the patient,
reasons why the physician believes certain details should be withheld, a description
of the information that was not disclosed, a summary of the medical findings used to
justify the decision not to disclose, and the details that were disclosed to the
patient. Where there has been a decision to forego or limit the consent discussion,
defense attorneys advise physicians to have a consent discussion with the patient’s
closest relative. A discussion with a relative may help the doctor determine the value
of withholding certain details from the patient. Discussions with relatives should be
noted in the chart.
Physicians are excused from disclosing risks if the patient requests not to be
informed: “It is a defense to any action for medical malpractice based upon an alleged
failure to obtain informed consent that ... the patient stated to the health care
provider that the patient would undergo the treatment or procedure regardless of the
risk involved or that the patient did not want to be informed of the matters to which
the patient would be entitled to be informed.” [See citation above] The patient’s
refusal to have the risks explained should be documented.
Who may give consent?
Those who may consent for treatment of a patient include the patient himself, the
nearest living relative (i.e., a spouse or parent), or the parent or guardian of a
minor.
The courts have held that in certain urgent situations, in emergencies, and in cases
in which the patient is unable to give consent, the physician may proceed without the
formality of a consent discussion.
When a patient is mentally incapable of giving informed consent, a physician or mental
health professional is required to obtain informed consent from the patient’s
guardian, spouse, or parent; where there is no guardian and the patient designates a
specific adult, the designee may give consent. When necessary, application can be made
to the court for an order to permit the treatment.
A patient who is capable of giving informed consent has an absolute right to refuse
electroconvulsive therapy or aversive conditioning. The law also provides that a
patient who lacks substantial capacity to make that decision may not be given such
therapy without a court order.
Physicians should be familiar with each hospital’s policy concerning obtaining consent
from legally or mentally incompetent patients.
Who is responsible for obtaining consent?
In Alaska, statutory law makes a health care provider liable for failure to obtain the
informed consent of the patient. Alaska law goes on to define health care provider as
including a physician, chiropractor . . . and an employee of a health care provider.
On its face, the statute may suggest that the task of obtaining informed consent can
be delegated to an employee of a physician. However, MIEC’s legal counsel recommends
that the physician not delegate to an employee the task of explaining the nature of a
procedure or treatment that the physician proposes to do, or the risks attendant
thereto, or the alternatives to the procedure or treatment. The physician should
personally undertake this task.
Consent for treating minors
The age of majority in Alaska is 18 years. A minor may, in certain circumstances,
consent to receive medical and dental services, including the diagnosis, prevention
and treatment of pregnancy, and the diagnosis and treatment of sexually transmitted
disease. A minor may consent to medical treatment under these additional circumstances:
1. The minor lives apart from his or her parents and is managing his or her own
financial affairs;
2. If a parent cannot be contacted, or if the parent is unwilling to grant or
withholds consent, provided that the physician counsels the minor;
3. When the minor is the parent of a child; the minor parent may consent to medical
treatment for him or herself, as well as for the child.
Payment for treatment of a minor
The parents or guardian of a minor who consents to his or her own medical treatment
under any of the circumstances outlined above, absent an emergency, are not responsible for payment for medical services rendered to the minor.
Treating minors in emergencies
In case of an emergency in which any minor is in need of immediate hospitalization,
medical attention or surgery and, after reasonable efforts have been made, the parents
or guardian of the minor cannot be located for the purpose of consenting to medical
care, consent for emergency medical attention may be given by any person standing
in loco parentis to the minor.
Parental consent for minor seeking an abortion
On February 25, 1998, Alaska Superior Court Judge Sen Tan ruled in the case of
Planned Parenthood of Alaska v. State of Alaska that it is unconstitutional to require written
parental consent before a doctor may perform an abortion on an unemancipated minor
under the age of 17. Specifically, Judge Tan indicated in his decision that such a
requirement breaches a minor’s right to privacy and her fundamental reproductive
rights, which include the right to have an abortion.
The Court’s decision also negates the “judicial bypass” procedure whereby a pregnant
unemancipated minor under the age of 17 can file a complaint with the superior court
to request the issuance of an order authorizing the minor to consent to her abortion.
The State of Alaska appealed Judge Tan’s decision to the Alaska Supreme Court. The
case was argued before the Court in December 1999. As of July 2001, Alaska's Supreme
Court justices have not rendered a decision. MIEC will notify Alaska policyholders of
the Supreme Court’s ruling.
Because this is an unsettled issue, physicians who have a question about a specific
patient or who need legal advice are encouraged to contact MIEC’s Claims Office for
assistance.
‘Informed Refusal’
Patients have the right to refuse medical treatment, surgery, or diagnostic tests.
When a test or procedure is recommended but initially declined, physicians are
encouraged to inform patients of the consequences of their refusal to undergo
recommended treatment, surgery, or diagnostic tests. Because it is not always
possible to know the eventual effect of the patient's failure to accept a physician's
advice, the consequences of the patient's decision sometimes must be discussed in
general terms. When the consequences are likely to be significant, such as the
worsening of an existing condition, serious bodily harm or death, or the possibility
that a serious disease will go undetected, the physician should review these
possibilities with the patient. Whenever a patient refuses to undergo recommended
treatment, surgery, or diagnostic tests, the physician should note the patient's
decision in the medical chart, and also indicate that the risks of the decision have
been discussed with the patient. As with all entries, such notes should be initialed
and dated.
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