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LEGAL MATTERS A recent Pennsylvania case, Shinal


versus Toms, 2017, ruled that members of a physician’s staff, e.g. physician assistants, may not obtain informed consent from patients. Florida’s Med- ical Consent Law assigns the respon- sibility to the surgeon, attending, or a resident physician to explain the pro- cedure. In Alabama, however, no case law specifically requires a face-to- face meeting with the patient to give informed consent and there are no restrictions on a physician assistant or other qualified healthcare professional explaining the risks associated with a procedure. To further complicate the issue, Nebraska Supreme Court, on April 25, 2019, held that a written form of informed consent is not required. After the patient receives a pre- anesthesia assessment, the anesthesia services provider should discuss with the patient the proposed type of anes- thesia and the risks. All this should occur prior to the patient receiving medication that can impact their ability to concentrate, comprehend and make decisions. The form used to document the process, whether provided by the anesthesia service or the ASC, should contain information about the type of anesthesia planned, the risks associ- ated with the proposed type of anes- thesia and the alternatives. The form should also include a statement that the anesthesia provider, when applica- ble to the arrangement for anesthesia services, is an independent contractor, not an employee of the ASC. Even when a signed anesthesia consent form is obtained, verifying that the anesthesia provider explained the material facts to the patient con- cerning the proposed use of anesthesia is crucial. In a Washington state case, Brown v. Dahl, 1985, a patient signed several admission forms that indicated the risks associated with anesthe- sia and consent to receive anesthesia. The doctor, however, did not discuss any of the risks associated with the procedure or alternatives to the anes-


cerns. Finally, the patient should sign the form to attest their agreement to proceed. This process of ongoing dia- logue between the patient and health- care providers will ensure the best blending of practitioner’s expertise and patient’s choice.


Capacity vs. Competency


thetic. As the anesthetic began to take effect, the patient’s airway became partially blocked and he went into car- diac arrest. The court held that a signed consent form was not sufficient evi- dence of informed consent. The court found that the patient only signed the form because a nurse told him to do so. Because the doctor did not disclose any risks and alternatives, it was not an “informed” consent. A healthcare facility’s consent


form, at a minimum, should include the confirmation of the name of the physician who will perform the pro- cedure, the name of the procedure and the laterality, when applicable. Further, the Centers for Medicare & Medicaid Services’ (CMS) Interpretive Guide- lines specify that the information in the informed consent form must be spe- cific to the patient and that the patient or patient’s representative must receive the information needed in order to make “informed” decisions regarding his or her care. The CMS guidelines further list minimum elements an ASC may consider adding to forms. The facility’s consent form should include a statement that affirms the patient has gone through an informed consent pro- cess and that the provider(s) addressed all of the patient’s questions and con-


30 ASC FOCUS OCTOBER 2019 | ascfocus.org


The term capacity is often confused with competency. Capacity is the men- tal ability to make a decision. To para- phrase an August 2011 article, “How Do I Determine If My Patient Has Decision-Making Capacity?” from The Hospitalist, capacity is a func- tional assessment that includes four key components: 1. communication—expressing a treatment option, not necessarily the terminology, but the general intent;


2. understanding—the reason for considering any treatment and op- tions;


3. appreciation—know that there is a real or potential illness and pos- sible outcomes; and


4. rationalization—consider the risks and benefits. Competency refers to the men- tal ability and cognitive capabilities required to rationally execute a legal act. A person is presumed competent and is allowed to make decisions, even decisions others might find foolish. The process for determining incompe- tency is not accomplished in the pre- operative area. Finding of incompe- tency is a complicated legal process, which denies an individual’s autonomy to make decisions. Based on medical assessments of the patient, courts may declare a person incompetent. Patients in a persistent vegetative state, those who are severely demented or severely mentally handicapped or actively psy- chotic patients would likely be found incompetent. On the other hand, courts have ruled that forgetfulness and peri- ods of confusion could not be used as a basis for appointment of a guard-


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