Alaska Informed Consent Supplement

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This supplement to our “Informed Consent Revisited” article contains excerpts from Alaska laws related to informed consent, consent by minors and special consents.

Alaska physicians who have questions about a specific patient or who require legal advice may call MIEC’s Claims Office in Anchorage, AK at 907-868-2500. For general liability questions, physicians and their staff can call MIEC’s Patient Safety & Risk Management (PSRM) Office in Anchorage, AK at 907-252-4015 or the PSRM Department in Oakland, CA at 800-227-4527.

Informed Consent

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, would 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 has a duty to provide a patient with enough information to allow a reasonable patient to make an informed and intelligent decision concerning whether to proceed with treatment.” [Marsingill v. O’Malley, 58 P.3d 495, 497-98 (Alaska 2002)] “Under the reasonable patient rule, a physician must disclose those risks which are ‘material’ to a reasonable patient’s decision concerning treatment.” [Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993)]. 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. Id.

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.” [AS 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.

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.” [AS 09.55.556(b)(2)] The patient’s refusal to have the risks explained should be documented.

Physicians are not required to obtain consent or disclose material risks in the face of an emergency, “…the physician’s duty to disclose is suspended where an emergency of such gravity and urgency exists that it is impractical to obtain the patient’s consent…”. [Korman v. Mallin, 858 P.2d 1145, at 1150]

Who may give consent?

Those who may consent for treatment of a patient include the patient, the nearest living relative (i.e., a spouse or parent), or the parent or guardian of a minor. [See Consent for Treating Minors]

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 designated agent, in the absence of a designation, or if the designee is not reasonably available, a member of the following classes of the patient’s family who is reasonably available, in descending order of priority, may act as surrogate: (1) the spouse, unless legally separated; (2) an adult child; (3) a parent; or (4) an adult sibling. If none of the individuals eligible to act as surrogate are reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s personal values, and who is reasonably available may act as surrogate [AS 13.52.030].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 unless the patient expressly authorized that particular form of treatment in an advance health care directive properly executed under AS 13.52 or has authorized an agent or surrogate under AS 13.52 to make this decision and the agent or surrogate consents to the treatment on behalf of the patient. [AS 47.30.825(f)]

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. [AS 09.55.560(2)] 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 withhold consent, the minor may give consent provided that the physician counsels the minor taking into consideration the interests of the parent as well as 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. [AS 25.20.025(a)(1)-(4)]

Although the language of AS 25.20.025(a) includes an express exception for a minor’s ability to consent to abortion without first complying with the parental notice and consent statutes provided for in AS 18.16.010 thru 18.16.090, the Alaska Supreme Court recently held that the parental notice and consent provisions contained within Alaska’s abortion statutes are unconstitutional, and therefore, are not enforceable. This issue is discussed in greater detail below.

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 or the minor’s child. [AS 25.20.025(a)(5)]

Parental notice or consent for unemancipated minor seeking an abortion

In 2010, Alaska voters passed the Parental Notification Law (PNL), which prohibited physicians from performing abortions on an “unmarried, unemancipated woman under 18 years of age” without first giving notice to the minor’s parent, legal guardian, or custodian at least 48 hours prior to the abortion; obtaining written consent from the minor’s parent, legal guardian, or custodian; or obtaining judicial authorization. [AS 18.16.020(a)(1)-(3)] An unemancipated woman is a woman who is unmarried and under 17 years of age and who is independent of her parent(s), legal guardian or custodian. [AS 18.16.090(2)] There was also an exception in the PNL for minors who were the victim of physical, sexual, or emotional abuse. [AS 18.16.020(a)(4)]

Physicians who knowingly perform abortions on minors without first providing the required parental notice, obtaining parental consent, or obtaining judicial authorization were subjected to criminal prosecution. [AS 18.16.010(c)] The PNL also required physicians to obtain the voluntary informed consent of the parent, guardian, or custodian of an unemancipated minor if required, or the informed consent of the unemancipated minor if authorized by a court. [AS 18.16.060(a)] Failure to obtain informed consent prior to performing the abortion could subject the physician or other health care provider to civil liability under the law. [AS 18.16.010(h)].

In 2016, the Alaska Supreme Court held that the PNL was unconstitutional because it violated the equal protection clause of the Alaska Constitution. The Court found that the State could not demonstrate that it had a compelling state interest in requiring parental notification or consent for minors seeking to terminate their pregnancy without requiring the same parental notice or consent for minors seeking to carry their pregnancy to term. Therefore, the Court concluded that the law is unenforceable. [Planned Parenthood of the Great Northwest v. State, 375 P.3d 1122 (Alaska 2016)]

Informed Refusal

Patients have the right to make decisions about medical treatment. 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. The standard for “informed refusal” is the same as that for “informed consent.” It requires a physician “to provide a patient with enough information to allow a reasonable patient to make an informed and intelligent decision concerning whether to proceed with treatment.” [Marsingill, 58 P.3d at 497-98; Marsingill v. O’Malley, 128 P.3d 151 (Alaska 2006)].

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, we recommend that the physician document 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 documented in a timely manner, initialed, and dated.

Revised July 2019

©MIEC 2019. Please do not reproduce with permission from MIEC’s PSRM Department.