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This chapter provides general information about important ED issues with legal ramifications: informed consent, treatment of minors, privacy and confidentiality, Emergency Medical Transfer in Active Labor Act (EMTALA), risk management, death certificates, newborns left in the ED, translation services, duty to third parties, telephone advice, and extension of care outside the ED.

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This section reviews the concept of informed consent, capacity, exceptions to informed consent, and the informed refusal of care.

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Every patient–physician interaction involves decision making that directly affects the patient and that are subject to numerous barriers and constraints.1 In the 1950s, case law in the U.S. established the concept of “informed consent.”2Informed consent is the legal standard under which physicians educate patients (those who have capacity to make medical decisions or their legal caretakers) about proposed treatments and alternatives. Informed consent allows the patient to make a decision consistent with personal values.3,4 The desirability of informed consent is based on the belief that it fosters the twin concepts of patient well-being and autonomy.5 Informed consent also provides a legal basis for autonomy.6

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Physicians should act in their patients’ best interests while preserving autonomy whenever possible.5 The American College of Emergency Physicians Code of Ethics7 recognizes this dual obligation in stating that emergency physicians “serve the best interest of their patients by treating or preventing disease or injury and by informing patients about their conditions, and acting in the best interests of their patients.” The code of ethics goes on to say “Adult patients with decision-making capacity have a right to and physicians the concomitant duty to respect, their preferences regarding their own health care. This right is grounded in the legal doctrine of informed consent.” The concepts of patient capacity and informed consent, and their exceptions, should be integrated into daily ED practice.

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Basic Elements of Informed Consent

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Most patients arriving at the ED sign a general consent for treatment. General consent for treatment is generally understood to cover history taking, standard examinations, and basic procedures such as venipuncture and blood analysis. General consent forms do not provide consent for more detailed, risky, or invasive procedures.5,8

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Informed consent requires two conditions: that the patient possesses decision-making capacity, and that the patient can make a voluntary choice free of undue influence. The process of informed consent starts with the delivery of information to the patient by the provider. The patient must then reach a decision and authorize the procedure or treatment.4 Each part of the process is considered individually.

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Patient Capacity

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Decision-making capacity (hereafter called “capacity”) is the ability of the patient to make informed medical decisions. It is the provider’s task to determine the patient’s capacity.9,10

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The definition of capacity varies among jurisdictions, but, in general, capacity describes ...

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