CONSENT

In the absence of an emergency that necessitates immediate medical action, and where the patient is competent and in possession of his or her faculties, a patient has the right to consent to a medical or surgical procedure to be performed by a physician. "Informed consent" can be obtained when the physician gives the patient relevant information on which to base the choice of treatment or procedure. This information should include the material risks of the proposed treatment or procedure. The test of whether or not a specific risk is "material" is whether or not a reasonably prudent person in the patient's position would attach significance to the risk in deciding whether or not to accept treatment.

Physicians may obtain consent from the patient either orally or in written form. ORC Section 2317.54 provides an added advantage to a written consent form that meets its requirements. Absent proof of bad faith, fraudulent misrepresentation of material facts, or the inability of the person executing the consent to communicate effectively in the language in which the consent is written, any written consent that fulfills the following three requirements will be statutorily presumed by a court reviewing the consent to be valid and effective:

1. The consent sets forth in general terms the nature and purpose of the procedure or procedures, and what the procedures are expected to accomplish, together with the reasonably known risks, and except in emergency situations, sets forth the names of the physicians who shall perform the intended surgical procedures.
2. The person making the consent acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner.
3. The consent is signed by the patient on whom the procedure is to be performed, or, if the patient for any reason including, but not limited to, competence, infancy, or the fact that, at the latest time that the consent is needed, the patient is under the influence of alcohol, hallucinogens, or drugs, lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. ORC § 2317.54

The statute also recognizes the right of a physician to obtain "oral or implied consent" from the patient as recognized by common law. ORC § 2317.54

There are special statutory provisions governing the granting of informed consent for institutionalized mentally retarded or hospitalized mentally ill individuals. ORC § 5122.271 establishes the mechanism for obtaining informed consent for hospitalized mentally ill individuals for the following procedures: surgery; convulsive therapy; major aversive interventions; sterilization; any unusual or hazardous treatment procedures; or psychosurgery. Similar provisions exist in ORC § 5123.86 for institutionalized mentally retarded individuals. Physicians treating such individuals should review ORC § 5122.271 and ORC § 5123.86 to determine who can give adequate informed consent under the statute and when court approval is required.

It should be noted that no one other than the institutionalized mentally retarded individual is capable of giving consent to sterilization, experimental procedures, or unusual or hazardous treatment procedures. ORC § 5123.86 (B)

No one other than the hospitalized mentally ill person is capable of giving consent to sterilization, unusual or hazardous treatment procedures, or psychosurgery. ORC § 5122.271 (B)

(See also:  AIDS/AIDS -RELATED CONDITION;  ANATOMICAL DONATIONS;  ARTIFICIAL INSEMINATION;  AUTOPSIES AND POST-MORTEMS;  DURABLE POWER OF ATTORNEY FOR HEALTH CARE;  MINORS,  CONSENT FOR TREATMENT OF; STERILIZATION )

CONSENT