California Informed Consent Supplement

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

California physicians who have questions about a specific patient or who require legal advice may call MIEC’s Claims Department in Oakland at 800-227-4527. For general liability questions, physicians and their staff can call MIEC’s Patient Safety & Risk Management Department in Oakland, CA at 800-227-4527.

Informed Consent

In California, the current law on informed consent is derived largely from the case of Cobbs vs. Grant (1972) 8 Cal.3d 229 in which it was ruled that a physician is required to disclose “all information relevant to a meaningful decisional process.” (page 242) Other case law that has influenced the current definition of informed consent includes Mathis v. Morrissey and Truman v. Thomas:

“When a doctor recommends a particular procedure then he or she must disclose to the patient all material information necessary to the decision to undergo the procedure, including a reasonable explanation of the procedure, its likelihood of success, the risks involved in accepting or rejecting the proposed procedure, and any other information a skilled practitioner in good standing would disclose to the patient under the same or similar circumstances.” [Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343]

“Material information” was defined by the court in Truman v. Thomas as:

“That which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure. To be material, a fact must also be one which is not commonly appreciated. If the physician knows or should know of a patient’s unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure.” [Truman v. Thomas (1980) 27 Cal.3d 285, 291]

In a case in which the plaintiff alleges that the physician failed to obtain informed consent, Judicial Council of California Civil Jury Instructions (CACI) [formerly BAJI Instructions] 532 and 533 must be read to the jury. CACI 532 defines informed consent (paraphrased):

532. Informed consent – Definition: A patient’s consent to a medical procedure must be ‘informed.’ A patient gives an ‘informed consent’ only after the (specialty-specific) medical practitioner has fully explained the proposed treatment or procedure. A medical practitioner must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. A medical practitioner must give the patient as much information as [he/she] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. A medical practitioner is not required to explain minor risks that are not likely to occur. (New September 2003; Revised December 2005, October 2008, June 2014)

533. Failure to Obtain Informed Consent—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] performed [a/an] [insert medical procedure] on [name of plaintiff] without first obtaining [his/her] informed consent. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] performed [a/an] [insert medical procedure] on [name of plaintiff];

2. That [name of defendant] did not disclose to [name of plaintiff] the important potential results and risks of [, and alternatives to] the [insert medical procedure];

3. That a reasonable person in [name of plaintiff]’s position would not have agreed to the [insert medical procedure] if he or she had been adequately informed; and

4. That [name of plaintiff] was harmed by a result or risk that [name of defendant] should have explained. (New September 2003; Revised June 2014)

MIEC’s defense attorneys recommend that doctors tell patients in lay terms the nature and purpose of the proposed surgery or treatment. (The Cobbs Court stated that “. . . the patient’s interest in information does not extend to a lengthy polysyllabic disclosure on all possible complications. A mini-course in medical science is not required; the patient is concerned with the risk of death or bodily harm, and the problems of recuperation.”)

The risks, complications, expected benefits of the recommended treatment, as well as alternatives, including the absence of treatment, and the consequent risks and benefits should be explained. The physician should advise the patient why one mode of treatment is more desirable than others, but should not accede to a patient’s demand for treatment the physician knows would be inappropriate, ineffective, or harmful.

When a Patient is Incompetent

Adults who have been legally adjudged to be incompetent usually cannot consent to medical treatment. Consent must be obtained from the patient’s guardian. There is little direct authority on the right to consent where an adult has not formally been adjudged incompetent, but his or her reasoning is impaired due to mental illness, intoxication, pain or other causes. In the absence of a legal guardian, defense attorneys advise that the right to consent passes to the patient’s closest available relative. If there is no relative, emergency consent may be implied if a genuine emergency exists. If the patient’s mental disability is temporary (for example, if the patient is delirious with pain), the patient’s own consent for further treatment must be obtained as soon as he or she is able to reason for him- or herself. If the patient does not possess decision-making capacity, the decision-making authority passes to: the Attorney-in-Fact under a Durable Power of Attorney for Health Care or advance directive, if any; the conservator, if any; the closest available relative; or court order, if circumstances warrant. Physicians should be familiar with each hospital’s policy for obtaining consent from legally or mentally incompetent patients.

Consent for Treating Minors

The age of majority in California is 18 years. [Family Code §6501] A person under the age of 18 lacks the legal capacity to give consent for medical treatment except under the circumstances cited below.

Emancipated Minor: California Family Code §7002 defines an emancipated minor as someone who: (a) has entered into a valid marriage, whether or not the marriage has been dissolved; (b) is on active duty with the armed forces of the United States; and/or (c) has received a declaration of emancipation pursuant to §7122. An emancipated minor may consent to medical, surgical, psychiatric, or hospital care without parental consent or knowledge. [Family Code §7050 (e)(1)]

Minor Emancipated by a Court Order: A minor may petition the superior court of the county in which the individual resides, or is temporarily living, for a declaration of emancipation. The minor must be at least 14 years of age, willingly lives separate and apart from his or her parents or guardian (who have consented to this arrangement), manages his or her own financial affairs and source of his/her income cannot be derived from a criminal activity as defined by California state law or US law. [Family Code §7120 – §7123]

Self-Sufficient Minor: A person 15 years of age or older living separate and apart from his or her parent(s) or legal guardian, with or without the parents’ consent, and managing his or her own financial affairs, regardless of the source of income, is capable of giving consent for medical or dental care without parental consent or financial liability. Physicians may wish to ask such minors to complete a form which provides information demonstrating that the minor falls within the statute. A physician may, with or without the consent of the minor patient, advise the minor’s parent or guardian of the treatment given or needed if the physician has reason to know, on the basis of the information given by the minor, the whereabouts of the parent or guardian. [Family Code §6922]

Pregnant Minor: Any minor, without respect to age or marital status can consent to care for the prevention or treatment of pregnancy, except a minor cannot consent to sterilization or abortion without consent of a parent or guardian. [Family Code §6925] Except in a medical emergency requiring immediate action, an abortion may not be performed on an unemancipated minor without her written consent and the written consent of one of her parents or guardians. In addition, an unemancipated minor may petition the juvenile court if one or both of the pregnant minor’s parents or her guardian refuse to consent to the performance of an abortion, or if the minor elects not to seek their consent. If the court finds that the minor is sufficiently mature and sufficiently informed to make the decision on her own regarding an abortion, the court shall grant the petition. [Health and Safety Code §123450]

Minor with an Infectious Disease: A minor who is 12 years or older who may have come into contact with an infectious, contagious, or communicable disease may consent to medical care related to the diagnosis or treatment of the disease, if the disease or condition is one that is required by law or regulation adopted pursuant to law to be reported to the local health officer, or is a related sexually transmitted disease, as may be determined by the State Public Health Officer. A minor who is 12 years or older may consent to care related to the prevention of sexually transmitted infections and minor’s parents or guardian are not liable for payment for medical care provided pursuant to this section. [Family Code §6926]

Rape Victims and Victims of Sexual Assault: A minor age 12 or older who alleges to have been raped may consent to care related to the diagnosis and treatment of the condition and the collection of medical evidence with regard to the alleged rape. A minor under the age of 18 who is alleged to have been sexually assaulted may consent to treatment for the condition. The health professional providing treatment to a minor victim of sexual assault must attempt to notify the minor’s parent(s) and document the date and time he/she attempted to contact parents or guardians, or was unsuccessful in his/her attempt. Note: The professional person may defer such contact with the parent if he or she reasonably believes the parent(s) or legal guardian of the minor committed the sexual assault. [Family Code §6927 and §6928] The professional should document that contact was not attempted and why it was not, as well as sexual abuse reporting laws when appropriate.

Minor injured as the result of violence by intimate partner: A minor who is 12 years of age or older and who states he or she was injured as a result of intimate partner violence may consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence. If the health practitioner providing treatment believes that the injuries being treated require reporting as defined in Penal Code §11160, the health practitioner must: inform the minor that the report will be made; attempt to contact the minor’s parent or guardian and inform them of the report; and document in the medical record the date and time of the attempt to contact the patient’s parents or guardian including whether the attempt was successful or not. These requirements do not apply if the health practitioner reasonably believes that the minor’s parent or guardian committed the intimate partner violence on the minor. [Family Code §6930]

Minor with Drug or Alcohol-Related Problems: A minor age 12 years or older may consent to medical care and counseling for drug- or alcohol-related problems. Counseling services must be rendered by a provider under a contract with the state or county to provide alcohol or drug abuse services [Family Code §6929(a)(1)]. The treatment plan of a minor authorized by Family Code §6929(c) shall include the involvement of the minor’s parent or guardian, if appropriate, as determined by the professional person or treatment facility treating the minor. The professional person providing medical care or counseling to a minor should note in the treatment record whether and when the provider attempted to contact the minor’s parent or guardian, and whether the attempt to contact the parent or guardian was successful or unsuccessful. If in the opinion of the professional person it would not be appropriate to contact the minor’s parent or guardian, the reason should be noted in the chart.

The parent or guardian are not liable for the counseling fees, unless the parent or guardian participate in the counseling. In that scenario, the parent or guardian is liable for the services provided to both the minor and adult. [Family Code §6929(d)]

A parent or legal guardian can seek medical care and counseling for a drug- or alcohol-related problem of a minor child without the minor’s consent. In such cases where a parent or guardian sought treatment for a minor, the physician will disclose medical information concerning the care to the minor’s parents or legal guardian upon their request, even if the child does not consent to disclosure, without liability for disclosure. [Family Code §6929(f)(g)]

Opioid prescription for a minor: A prescriber must discuss the following information with a minor, the minor’s parents or guardian, or another adult authorized to consent to the minor’s medical treatment before directly dispensing or issuing for a minor the first prescription in a single course of treatment for a controlled substance containing an opioid:

(1) The risks of addiction and overdose associated with the use of opioids.

(2) The increased risk of addiction to an opioid to an individual who is suffering from both mental and substance abuse disorders.

(3) The danger of taking an opioid with a benzodiazepine, alcohol, or another central nervous system depressant.

(4) Any other information required by law. [Health & Safety Code §11158.1(a)]

The provider prescribing the controlled substance containing an opioid is not required to have this conversation if the minor’s treatment is emergent, if the treatment is associated with an emergent surgery, or, if in the provider’s opinion the discussion is detrimental to the minor’s health or safety, or a violation of the patient’s confidentiality. [Health & Safety Code §11158.1(b)]

Mental Health Treatment of Minor: A minor age 12 or older may consent to mental health treatment or counseling on an outpatient basis, or specifically defined residential shelter services, if the minor is considered: mature enough to intelligently participate in the program; there is a present danger of serious physical or mental harm to the minor or others if he or she is not permitted to participate in the program; or the minor is an alleged victim of child abuse or incest. The minor described in this section may not receive convulsive therapy, psychosurgery, or psychotropic drugs without parental or guardian consent. The parent or guardian must be afforded an opportunity to participate in the treatment or counseling, unless the treating professional considers this inappropriate. The treating health professional must document efforts to contact the parent or guardian or the reasons why it was inappropriate to make such contact.

The minor’s parents or guardian are not liable for payment for mental health treatment or counseling services provided pursuant to this section unless the parent or guardian participates in the mental health treatment or counseling, and then only for services rendered with the participation of the parent or guardian. The minor’s parents or guardian are not liable for payment for any residential shelter services provided pursuant to this section unless the parent or guardian consented to the provision of those services. [Family Code §6924]

Other: Minors over the age of 12 may consent to performance of a blood test to detect HIV antibodies. [Health and Safety Code §121020]

Minors 17 and older may consent to donate blood. Minors 15 years and older may consent to give blood if they have a written consent from their parents or legal guardian and a physician’s written authorization of donate. [Health & Safety Code §1607.5]

A minor’s parent(s), guardian, or caregiver who is a relative of the minor may sign a statement authorizing a third party to consent to a minor’s medical care in the parents’ absence. [Family Code §6910] If a physician treats a minor with the third party’s informed consent, the physician should keep a copy of the parental authorization in the medical record.

Special Consent Requirements

Physicians should be aware that California law mandates special consent requirements, including the distribution of certain written information and/or the signing of specific consent forms for some treatments, procedures, and surgeries. These include: breast, prostate and gynecological cancer treatment, silicone breast implants and collagen injections, dimethyl sulfoxide (DMSO) treatment, hysterectomies, sterilization for both men and women, assisted reproduction treatment, certain vaccinations for children and adults, experimental procedures, electroconvulsive therapy, psychosurgery, HIV testing, the administration of antipsychotic drugs, and prescription of a drug for the purpose of ending a patient’s life, pursuant to the End of Life Option Act.

Informed consent laws as they apply to blood transfusion lack specificity; however, it is prudent for physicians to discuss the relevant information with patients, obtain their informed consent to a blood transfusion, and document the discussion in the patient’s medical record.

The Paul Gann Blood Safety Act [Health & Safety Code §1645] makes it mandatory for a physician to inform patients of the benefits and risks of receiving various types of blood transfusions “whenever there is a reasonable possibility that a blood transfusion may be necessary as a result of a medical or surgical procedure.” This requirement applies to all non-emergent medical and surgical procedures, not only those which are “elective.”

Physicians also are required to dispense to patients a standardized summary of those options in a brochure entitled, A Patient’s Guide to Blood Transfusion, produced by the State Department of Public Health (DPH). This is the responsibility of the physician, rather than the hospital. This brochure may be downloaded from the Medical Board of California website.  A Spanish version is available. The standardized literature may be photocopied. The law requires doctors to note in patients’ charts that the brochure was dispensed.

Consult MIEC’s Patient Safety & Risk Management Department for further information about special consent requirements and corresponding consent forms.

Telehealth

Amended Business & Professions Code §2290.5 replaces the terminology of “telemedicine” with “telehealth” to reflect the broader range of services and applications of telehealth technology, and applies the definition to all appropriately licensed health professionals. “Telehealth” is specifically defined as, “the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at the distant site. Telehealth facilitates

patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store-and-forward transfers.” This revised definition does not specifically exclude telephone conversations or e-mail messages. Prior to the delivery of health care via telehealth, the provider at the originating site shall inform the patient that telehealth may be used and obtain verbal consent for doing so. The provider will document the patient’s verbal consent in the medical record. An additional, written consent form with the patient’s signature is no longer required.

‘Informed Refusal’

In 1980, the California Supreme Court created a new legal doctrine, “Informed Refusal,” which holds that a physician may be liable for failing to tell patients the consequences of refusing to have diagnostic tests or medical treatment [Truman v. Thomas (1980) 27 Cal.3d 285, 291].

As with the definition and jury instruction for informed consent, the CACI definition of informed refusal and the instruction have replaced the BAJI instructions. CACI 534 and 535 read (paraphrased):

534. Informed Refusal—Definition: A (specialty-specific) medical practitioner must explain the risks of refusing a procedure in language that the patient can understand and give the patient as much information as [he/she] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding not to have [a/an] [insert medical procedure]. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is refused. [A/An] [insert type of medical practitioner] is not required to explain minor risks that are not likely to occur. (New September 2003)

535. Risks of Nontreatment—Essential Factual Elements:

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] did not fully inform [name of plaintiff] about the risks of refusing the [insert medical procedure]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] did not perform the [insert medical procedure] on [name of plaintiff];

2. That [name of defendant] did not disclose to [name of plaintiff] the important potential risks of refusing the [insert medical procedure];

3. That a reasonable person in [name of plaintiff]’s position would have agreed to the [insert medical procedure] if he or she had been fully informed about these risks; and

4. That [name of plaintiff] was harmed by the failure to have the [insert medical procedure] performed.

(New September 2003; Revised June 2014)

MIEC’s legal counsel advises physicians to tell patients the consequences of their refusal in broad terms. It is not necessary to discuss every conceivable problem which might occur. Just as important as telling the patient the risks of refusal is documenting that you discussed the possible consequences of refusal. A brief, but meaningful note suffices. Some doctors write: “Patient refuses test (treatment); explained consequences of not having treatment and degree of urgency, and patient understands.”

Revised July 2019

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