Idaho Informed Consent Supplement

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

Idaho physicians who have questions about a specific patient or who require legal advice may call MIEC’s Claims Office in Boise at 208-344-6378. For general liability questions, physicians and their staff can contact MIEC’s Patient Safety & Risk Management (PSRM) Specialist in Boise at 208-807-2603 or the PSRM Department in Oakland, CA at 800-227-4527.

Informed Consent

Idaho law provides that consent, or refusal to consent, for the furnishing of health care, treatment or procedures “shall be valid in all respects if the person giving or refusing the consent is sufficiently aware of pertinent facts respecting the need for, the nature of, and the significant risks ordinarily attendant upon a patient receiving such care, as to permit the giving or withholding of such consent to be a reasonably informed decision.” [Idaho Code §36-4506] The consent obtained is considered valid “if the health care provider to whom it is given or by whom it is secured has made such disclosures and given such advice respecting pertinent facts and considerations as would ordinarily be made and given under the same or similar circumstances, by a like health care provider of good standing practicing in the same community.” The term “in the same community” refers to that geographic area ordinarily served by the licensed general hospital at or nearest to which consent is given. [Idaho Code §39-4506]

 

Who May Give Consent?

“Any person . . . who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care treatment or procedures is competent to consent thereto on his or her own behalf.” [Idaho Code §39-4503] The person giving consent must appear to the health care provider securing the consent to possess the requisite intelligence and awareness to understand the discussion.

In emergency situations, a health care provider can forego obtaining informed consent when the patient presents a medical emergency “…or there is a substantial likelihood of his or her life or health being seriously endangered by withholding or delay in the rendering of such hospital, medical, dental, surgical or other health care to such person and the person has not communicated and is unable to communicate his or her treatment wishes…” [Idaho Code §39-4504(i)]

In the event a patient is not competent to give consent or is a minor, a court appointed guardian, a competent parent, spouse, adult child, legal guardian, or person named in the patient’s “Living Will and Durable Power of Attorney for Health Care” may give consent. If none of these individuals is readily available, consent may be provided by any competent relative representing himself or herself to be an appropriate, responsible person to act under the circumstances, or any other competent individual representing

himself or herself to be responsible for the health care of the patient. [Idaho Code §39-4504(a)-(h)]

 

Form of Consent

Written consent executed or initialed by a person competent to give consent for himself or another and expressly authorizing the care, treatment or procedures to be furnished is presumed to be valid; the advice and disclosures of the attending physician or dentist, as well as the level of informed awareness of the giver of consent are presumed to be sufficient. (These presumptions may be invalidated in the presence of convincing proof that consent was secured maliciously or by fraud.) [Idaho Code §39-4507]

 

Responsibility for Consent and Documentation

Obtaining sufficient consent for health care is the duty of the attending health care provider upon whose order or at whose direction the contemplated care, treatment or procedure is rendered. A licensed hospital and any employee of a health care provider, acting with the approval of such an attending or other individual health care provider, may perform the ministerial act of documenting consent by securing the completion and execution of a consent form or statement. [Idaho Code §39-4508]

 

Consent for Treating Minors

As noted above, Idaho statutes state that “any person [emphasis added] who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental surgical or other health care treatment or procedures is competent to consent thereto on his or her own behalf.”

Although the law refers to “any person” rather than to “any adult,” some Idaho attorneys believe that, except when a specific statute allows a minor to give consent, an unmarried or unemancipated minor in Idaho is not legally competent to give consent to medical treatment under ordinary circumstances and individuals outlined in Idaho Code §39-4504(a)-(h) must provide consent on the minor’s behalf.

Idaho Code defines minor emancipation:

  1. A court has entered an order that declares the minor to be emancipated;
  2. The minor is married or has been married;
  3. The minor is serving in the active military; or,
  4. The minor has rejected the parent-child relationship, is living on their own, and is self-supporting. [Idaho Code §§16-2403(1), 18-604(3), 66-402(6)]

Pregnancy is not an emancipating event in Idaho. [Idaho Code §18-602]

When minors can consent for their own care

  • A minor 14 years of age or older may consent to their own treatment for certain infectious or communicable diseases (including sexually transmitted infections). “The consent of the parent, parents, or legal guardian of such minor shall not be necessary to authorize hospital, medical and surgical care related to such disease and such parent, parents, or legal guardian shall not be liable for payment for any care rendered…” [Idaho Code §39-3801]
  • A minor 14 years of age or older may consent to their own hospitalization for certain mental health care. However, the facility director is required to notify the parent, parents, or guardian of the admission. [Idaho Code §66-318(b)]
  • A minor 16 years of age or older may consent to their own treatment for drug abuse. Only with the minor’s consent, can the treating healthcare provider report or disclose to the parents or legal guardian that the minor sought care or rehabilitation. The physician should counsel the minor as to the benefits of involving parents or legal guardian in the patient’s treatment or rehabilitation. [Idaho Code §37-3102]
  • Physicians and other licensed practitioners may provide examinations, prescriptions, devices and informational materials regarding contraception if the physician deems the patient to have sufficient intelligence and maturity to understand the nature and significance of the treatment (see below for information on minor consent for abortion). [Idaho Code §§18-603 and 18-609A(2)(a)]
  • With parental consent, a minor 16 years old can donate blood in a voluntary, no compensatory blood program. A 17-year-old minor can do the same without parental consent. [Idaho Code §39-3701]

Physicians who are uncertain what to do in a specific case (such as a self-supporting minor who has not been formally emancipated or a minor serving in the military) should contact the Boise Claims Office; if necessary, a Claims Analyst can obtain appropriate legal advice or refer the physician to an MIEC defense attorney.

 

Consent for Abortion

Idaho Code §18-609 requires that certain pre-abortion information be provided to the patient regarding the description of: services available to assist a woman at childbirth; the physical characteristics of a normal fetus; the abortion procedures used in current medicine; chemical abortions; and to be offered an ultrasound free of charge and an opportunity to hear the fetus’ hear beat. This information shall also be posted on a website by the Department of Health and Welfare. Physicians or their agents must provide women inquiring about obtaining an abortion with the address to this website before or while scheduling an abortion-related appointment. Prior to the performance of an abortion, the attending physician or the physician’s agent must certify in writing that the materials have been provided to the pregnant patient at least twenty-four hours before the performance of the abortion.

Written certification of prior notice is not mandated in the case of a medical emergency. In such cases, the attending physician or the physician’s agent shall deliver to the Department of Health and Welfare a report signed by the attending physician (preserving the patient’s anonymity) denoting the medical emergency that excuses compliance with the duty to deliver the materials. The report must be submitted within thirty days of performing an abortion without certification and delivery of the materials.

 

Consent for Abortion: Minors

A physician is prohibited from performing an abortion on an unemancipated minor absent written consent from one of the minor’s parents or the minor’s guardian or conservator. A judge of the district court may authorize a physician to perform the abortion if the judge determines that the pregnant minor is mature and capable of giving informed consent to the abortion; or the performance of an abortion would be in her best interests.

Parental consent or judicial authorization is not required if a medical emergency exists for the minor or if the pregnant minor certifies to the attending physician that the pregnancy resulted from rape* or sexual conduct with the minor by the minor’s parent, stepparent, uncle, grandparent, sibling, adoptive parent, legal guardian or foster parent. [Idaho Code §18-609]

 

Consent for Blood Testing

A physician may consent to ordering tests of a patient’s or a deceased person’s blood or other body fluids for the presence of blood- or body fluid-transmitted viruses or diseases without the patient’s prior consent if: 1) There has been or is likely to be a significant exposure to the patient’s blood or body fluids by a person providing emergency or medical services which may result in the transmittal of a virus or disease; and 2) The patient is unconscious or incapable of giving informed consent and the physician is unable to obtain consent. Results of the tests which confirm the presence of a blood- or body fluid-transmitted virus or disease shall be reported to the Department of Health and Welfare and the exposed person shall be informed of the test results (not including the name of the patient). The Department of Health and Welfare is charged with defining “significant exposure” and promulgating protocols for reporting and records. Any person who willfully or maliciously discloses the results of a test conducted under this section, without the patient’s written authorization or otherwise authorized by law, will be guilty of a misdemeanor. [Idaho Code §39-4505]

 

Revised July 2019

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

*Rape as defined in Idaho Code §18-6101(1) and (2): Where the female is under the age of sixteen years and the perpetrator is eighteen years of age or older; Where the female is sixteen or seventeen years of age and the perpetrator is three years or more older than the female.