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LEGAL MATTERS


ian because the patient exhibited lucid periods of being fully aware of treat- ment choices. Lack of decision-mak- ing capacity is not always permanent and can be impacted by the time of day, medications given or withheld, familiarity with surroundings, depres- sion and anxiety, among other things. Capacity is determined by physi- cians, not the judiciary. The physicians determine the patient’s capacity based on the individual’s psychological abil- ities to understand, appreciate and process information to make rational decisions. A patient evaluated by phy- sicians to lack capacity to make ratio- nal health care decisions cannot con- sent to or refuse treatment and requires another individual to make his or her healthcare decisions.


Serving a patient population that could become incapacitated due to cir- cumstances and medication presents a need for the ASC staff to understand


who has the legal authority to con- sent to treatment and sign documents confirming that the informed con- sent process has occurred. Remem- ber that informed consent is a process that starts with a discussion between a provider and the patient. Since this discussion must include the reasons for and risks of having or not hav- ing the procedure, the physician who will perform the procedure might be aware of any potential condition that would impair the patient’s ability to consent to the procedure. Learning in advance from the physician or physi- cian’s office if the patient has executed a durable healthcare power of attor- ney or appointed a healthcare surro- gate or relies on a spouse or daughter will assist staff at the surgery center in planning for the patient’s admission. It also will assist the staff in determining who can receive discharge instructions and provide assistance to the patient


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after discharge, as well as how to doc- ument patient care instructions in the medical record. Allowing someone else to make a decision for a patient is addressed in state regulations and rules. Many stat- utes include a list of individuals who are authorized to make decisions when the patient lacks capacity. There may be circumstances attached to that author- ity, however, such as the requirement for two physicians to determine that the patient is lacking capacity to make the decision. A patient in the pre-operative area might seem confused. Would there be two physicians present to determine and document that the patient is lack- ing capacity to make a decision and, therefore, a surrogate should be con- tacted? If no surrogate has previously been appointed by the patient, who has the right to make decisions for a patient lacking capacity? Since the ASC proce- dures are not usually emergency proce- dures, for which exceptions to proceed would apply, should the procedure be cancelled or can someone else be con- tacted to consent for the patient? Is cataract surgery a medical emer-


gency? Is a colonoscopy a medical emergency? Of course not. Although having to cancel a colonoscopy after the patient has gone through the exhausting preparation for the proce- dure is not convenient to the patient, facility or physician, proceeding with- out a proper consent process would be difficult to support and could expose all parties involved to medical mal- practice liability. Gathering informa- tion prior to admission and knowing what to do should the patient not have ability to consent on the day of the pro- cedure is important.


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Nesko Radovic is an associate with McGuireWoods LLP in Chicago, Illinois, and Sandra Jones, CASC, is the president and chief executive officer of Ambulatory Strategies Inc. in Dade City, Florida. Write Radovic at nradovic@mcguirewoods.com and Jones at sjones@aboutascs.com.


32 ASC FOCUS OCTOBER 2019 | ascfocus.org


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