Hawaii Informed Consent Supplement

Published on: June 29, 2019

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

Hawaii physicians who have questions about a specific patient or who require legal advice may call MIEC’s Claims Office in Honolulu at 808-545-7231 or in Oakland, CA 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 the state of Hawaii, physicians must obtain informed consent from a patient prior to proposed medical or surgical treatments and diagnostic or therapeutic procedures. Hawaii’s informed consent statutes read, in part:

“. . . (b) The following information shall be supplied to the patient or the patient’s guardian or legal surrogate prior to obtaining consent to a proposed medical or surgical treatment or a diagnostic or therapeutic procedure:

The condition to be treated;
A description of the proposed treatment or procedure;
The intended and anticipated results of the proposed treatment or procedure;
The recognized alternative treatments or procedures, including the option of not providing these treatments or procedures;
The recognized material risks of serious complications or mortality associated with:
- (A) The proposed treatment or procedure;
- (B) The recognized alternative treatments or procedures; and
- (C) Not undergoing any treatment or procedure; and
The recognized benefits of the recognized alternative treatments or procedures. …” [HRS §671-3(b)]

“ (d) Nothing in this section shall require informed consent from a patient or a patient’s guardian or legal surrogate when emergency treatment or an emergency procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient’s health.” [HRS §671-3(d)]

A risk is considered “material” when “…a reasonable person, in which the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.” [As defined in Canterbury v. Spence, 464 F.2d 772 (D.C.Cir. 1972)]

As of 2004, Hawaii’s Uniform Health Care Decisions Act (HRS Chapter 327E) allows an adult or emancipated minor to designate a legal surrogate who can make health care decisions for the person when it is determined that the patient lacks the capacity to make his/her own health care decisions and when a guardian has not been appointed. Physicians are required to obtain informed consent from a patient’s legal surrogate whenever a surrogate is authorized to act for a patient.

If a physician initiates complex treatment that relies upon multiple practitioners for completion, the referring physician is obligated to inform the patient of all the necessary steps of treatment before commencement of the initial step:

On February 25, 1998, in the case of O’Neal v. Hammer, 953 P.2d 561 (Hawaii 1998), the Hawaii Supreme Court decided:

“…if a combined treatment plan is carried out in which one step depends on another and the patient is required to proceed with the remainder of the plan as soon as the first step is accomplished, it is not sufficient to inform the patient about the risk inherent in each individual step immediately prior to the performance of that step. Rather, to ensure the patient’s right to intelligently and knowingly make his or her decision, all necessary information must be provided before the first irrevocable step in the treatment process is initiated [by the physician who initiates the first irrevocable step].”

For example, an obstetrician/ gynecologist diagnoses a breast lump and believes it may be cancer. He/she refers the patient to a surgeon, who does an examination and recommends excision of the lesion followed by radiation therapy and chemotherapy. In order to allow the patient to give an informed consent, the surgeon should review: the risks and benefits of the proposed surgery (e.g., lumpectomy with wide excision vs. mastectomy); discuss the risks and benefits of both radiation therapy and chemotherapy, if indicated; and review with the patient any additional information that will help the patient make a decision and give consent including alternative treatment(s) and non-treatment. The discussion between the surgeon and patient should take place before the first irrevocable step, the surgical procedure. The radiation oncologist and oncologist who will administer the chemotherapy will also review with the patient the risks, benefits, and alternatives of their respective therapies.

Finally, the patient’s obstetrician/ gynecologist, who may be responsible for post-treatment monitoring, should be kept informed of the patient’s care and treatment, as communication among co-treating physicians is essential to optimal care and patient safety.

The Court also extended the duty to inform the patient of the risks associated with proposed treatment or surgical procedure to “second opinion physicians.” The Court said that a “second opinion physician” is a doctor “called in directly by the patient to advise the patient” of the risks associated with a treatment or surgical procedure. The Court indicated it would be illogical to hold that a second opinion physician does not have to perform his or her primary duty, which is to advise the patient of the risks and alternatives to the suggested treatment or surgery.

Therapeutic Privilege: If a doctor believes that the patient’s emotional and physical condition could be adversely affected by full disclosure of the treatment risks, disclosure may be legally withheld. This principle is called therapeutic privilege, which was clearly enunciated in Nishi v. Hartwell, Hawaii’s first case on informed consent. The plaintiff-dentist, Dr. Nishi, sought damages for below-waist paralysis following thoracic aortography. This procedure-related risk was never discussed with him, purportedly because of his serious underlying cardiac status and extreme apprehension over his condition.

In addressing the therapeutic privilege defense raised by the defendant, the Hawaii Supreme Court held that “the doctrine recognizes that the primary duty of a physician is to do what is best for his patient, and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient’s total care and best interest” (Nishi v. Hartwell, 473 P.2d 116 [Haw. 1970]). This doctrine has subsequently been reaffirmed (Carr v. Strode, 79 Hawaii 475 [1995]).

In the well-known case of Canterbury v. Spence, the U.S. Court of Appeals in the District of Columbia also articulated the therapeutic privilege exception to informed consent, in order to enable the doctor to withhold risk information if such disclosure would pose a serious threat of psychological detriment to the patient. However, the physician is still required to disclose any information that will not prove harmful to the patient (Canterbury v. Spence, 464 F.2d 772 [D.C. Cir. 1972]).

Consent for Treating Minors

Eighteen years is the age of majority in the State of Hawaii. A minor (for the purpose of consenting to medical care and services) shall be any person age fourteen to seventeen inclusively. [HRS §577A-1]

Absent emergency circumstances, minors usually cannot consent to medical treatment. This general rule has statutory exceptions. A minor who has been married is deemed emancipated and has the right to consent to his or her own treatment. “Unsupported minors” may also consent to primary care treatment (see below).

Minors who are neither emancipated nor unsupported may consent to care for limited purposes. Hawaii Revised Statutes define “medical care and services” to which a minor may consent as “diagnosis, examination, and admini-stration of medication in the treatment of venereal diseases, pregnancy, and family planning service (which includes counseling and medical care designed to facilitate family planning). It shall not include surgery or any treatment to induce abortion.” [HRS §577A-1]

Consent given by a female minor to a physician, advanced practice registered nurse (APRN), or hospital is considered valid when the minor is or professes to be pregnant, has or professes to have a venereal disease, or seeks family planning services. Consent from a parent, guardian, custodian, or spouse is not required. [HRS §577A-2]

The physician or APRN may, at his/her discretion, inform the spouse, parent, custodian, or guardian of the provision of medical care or services to a minor, or disclose any information pertaining to such, after consulting with the minor. This includes discretionary disclosure if:

The minor is diagnosed as pregnant or has a venereal disease;
The minor is not diagnosed as being pregnant or having a venereal disease. The “application for diagnosis,” also may be disclosed. [HRS §577A-3]

Parents, guardians, custodians, or spouses who were not informed a minor’s medical care and who have not consented to that care are not financially responsible. Any action to recover costs shall not commence until a minor has reached the age of 18 and must commence within two (2) years of that time. [HRS §577A-4]

Consent for Abortion

HRS §453-16 defines (in part) Hawaii’s abortion law:

Intentional termination of pregnancy; penalties; refusal to perform.

(a) No abortion shall be performed in this state unless: (1) The abortion is performed by a licensed physician or surgeon, or by a licensed osteopathic physician and surgeon; and (2) The abortion is performed in a hospital licensed by the department of health or operated by the federal government or an agency thereof, or in a clinic or physician’s or osteopathic physician’s office.
(b) Abortion shall mean an operation to intentionally terminate the pregnancy of a nonviable fetus. The termination of a pregnancy of a viable fetus is not included in this section.
(c) The State shall not deny or interfere with a female’s right to choose or obtain an abortion of a nonviable fetus or an abortion that is necessary to protect the life or health of the female.
(d) Any person who knowingly violates subsection (a) shall be fined not more than $1,000 or imprisoned not more than five years, or both.
(e) Nothing in this section shall require any hospital or any person to participate in an abortion nor shall any hospital or any person be liable for a refusal.

Although there is no provision under Hawaii statutes concerning legal consent by female minors for termination of pregnancy, under existing United States Supreme Court rulings, it is unconstitutional for a state to require consent of a female minor’s parent(s). The Supreme Court has ruled, however, that a state may require that parents be informed.

HRS §577A-2 provides that a minor can consent to family planning and venereal disease treatment, and the fact that the consenting patient is a minor cannot be used later to disaffirm consent.

If a female minor is not competent to give consent for termination of pregnancy, consent can be sought from the courts or from the parents.

“Unsupported Minors”

In 2007, the Hawaii legislature enacted a law allowing “minors without support” to consent to primary medical care services. A “minor without support” is one who is “at least fourteen years of age but less than eighteen years of age who is not under the care, supervision, or control of a parent, custodian, or legal guardian.” [HRS §577D-1]

According to legislative committee reports, the law is intended to provide access to medical services for those minors whose circumstances prevent parental consent, but who are not technically “emancipated” minors. The reports cite examples of minors who fit the criteria, including:

minors who are homeless;
minors who are running away from abusive or drug-addicted parents; and
Pacific Islander minors who have moved to Hawaii on their own.

The statute defines “primary medical care and services” as: “health services that include screening, counseling, immunizations, medication, and treatment of illnesses and medical conditions customarily provided by licensed health care practitioners in an outpatient setting. [It] does not include invasive care, such as surgery, that goes beyond standard injections, laceration care, or treatment of simple abscesses.” [HRS §577D-1]

Barring acts of gross negligence or willful or wanton acts or omissions, health care professionals who provide care to minors in good faith cannot be held liable for treating a minor patient who has misrepresented that he or she is a minor without support. [HRS §577D-2(e)] MIEC recommends that health care practitioners document in the medical record specific details of those discussions in which it is determined that a minor qualifies as a “minor without support” and is therefore able to consent to primary medical care and services.

Minors without support are held financially responsible for the care provided. [HRS §577D-2(f)]

Consent when treating patients with mental illness

“(a) Before any nonemergency treatment for mental illness can commence, informed consent, as required by HRS section 671-3 and as defined by the Hawaii medical board . . . shall be obtained from the patient, or the patient’s guardian, if the patient is not competent to give informed consent.

(b) A signed consent form reflecting the proceeding shall be obtained and maintained as part of the patient’s record.” [HRS §334E-1]

Consent when prescribing opioids

As of July 1, 2018, all providers authorized to prescribe opioids in Hawai’i must adopt a written policy that includes the execution of a written informed consent document when prescribing opioids to a “qualifying opioid therapy patient,” defined as follows:

A patient requiring opioid treatment for more than three (3) months;
A patient who is prescribed benzodiazepines and opioids together; or
A patient who is prescribed a cumulative dosage of opioids that exceeds ninety (90) morphine milligram equivalents (MME) daily. [Act 66 (17) codified in HRS §329-38.5]

The Department of Health issued a template informed consent document for opioid therapy.

Hawaii physicians prescribing opioids to injured employees within the Worker’s Compensation system should be aware of newly enacted HRS Chapter 386A [SB2244 (18)] which goes into effect on 7/1/2019 and, like Act 66, has mandate for a written policy that includes the execution of a written informed consent document.

Special Consents

HIV testing: “(a) (a) A health care provider may subject a person’s body fluids or tissue to a test for the presence of human immunodeficiency virus infection after:

(1) Orally explaining to the person that certain personalized test results are maintained by the department of health, according to strict confidentiality protocols established by law;

(2) Orally advising the person that free and anonymous human immunodeficiency virus testing is available through the department of health and certain community agencies;

(3) Providing the person reasonable opportunity to decline the test; and

(4) Receiving the person’s express oral consent to the test.

A health care provider may, for the purpose of obtaining consent to the test and in lieu of the oral-consent procedure specified in this subsection, use a written form that, at a minimum, provides equivalent information to that prescribed by paragraphs [(1) and (2)]; provided that the health care provider shall allow the person reasonable opportunity to decline consent by declining to sign the form.” [HRS §325-16(a)]

Mastectomy: “…(c) On or before January 1, 1984, the Hawaii medical board shall establish standards for health care providers to follow in giving information to a patient or a patient’s guardian, to ensure that the patient’s consent to the performance of a mastectomy is an informed consent. The standards shall include the substantive content of the information to be given, the manner in which the information is to be given by the health care provider and the manner in which consent is to be given by the patient or the patient’s guardian. The substantive content of the information to be given shall include information on the recognized alternative forms of treatment.” [HRS §671-3(c)]

MIEC’s Honolulu Claims Office will assist insureds who are confronted with a situation in which a court order may be necessary.

Revised July 2019

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