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LEGAL MATTERS


Informed Consent Process in Ambulatory Surgery Review state laws and AHRQ materials before creating your policy BY NESKO RADOVIC AND SANDRA JONES, CASC


Editor’s note: This is part two of a two- part column. Look for the first part on page 28 of the October 2019 issue of ASC Focus.


In rare situa- tions, the dura- tion of the informed con- sent could pres-


ent an issue. Some state laws presume that a written authorization signed by the patient is valid. Some states might specify the time frame in which consent remains valid; others require that con- sent be obtained no more than 30 days from the procedure. Therefore, check- ing state regulations is essential. For example, Florida’s consent statute does not contain any date restrictions, while Georgia law, with some nuances, states that a consent is valid for 30 days. Over- all, however, the informed consent pro- cess includes discussion of the risk and rewards based upon the history and physical condition of the patient at the time the procedure will be performed. The validity of a consent form executed a week prior to the procedure could be challenged if the patient’s condition at the time of the procedure changed the risks involved with the procedure. In Florida, for example, two physi- cians must evaluate the patient, deter- mine that a patient lacks capacity to make healthcare decisions, document this in the medical record and notify the healthcare surrogate or the attorney that the patient became incapacitated, thus placing the decision making on the sur- rogate. Once the patient regains capac- ity, the patient possesses full authority to make his or her own decisions. Before delegating the decision-mak- ing to a surrogate, ASC staff should refer


to the patient’s advance directive, if one is on file. Advance directives encompass any written instruction, such as a liv- ing will, durable power of attorney for healthcare, recognized under state law, relating to the provision of healthcare when the individual is incapacitated. Do- Not-Resuscitate orders (DNR) also fall into this category. The advance directive may limit decision making to end-of-life circumstances rather than the normal course of healthcare services. In the absence of an advance directive


that covers authority for normal course of healthcare decisions, state regulations specify who can serve as a proxy to make healthcare decisions when the patient is incapacitated. The regulations specify the individuals as well as the order of priority in decision-making. Consistent with the informed consent process, the proxy must receive relevant information to have a general understanding of the procedure, substantial risks and medi- cally acceptable alternatives. In Florida, for example, the priority order is: 1. court appointed guardian; 2. patient’s spouse; 3. an adult child of the patient or the majority of adult children of the patient if the patient has more than one adult child;


4. a parent of the patient; 5. the adult sibling of the patient or a majority of the adult siblings if the patient has more than one;


14 ASC FOCUS NOVEMBER/DECEMBER 2019| ascfocus.org


6. an adult relative of the patient who has exhibited special care and concern for the patient by having regular contact and famil- iarity with patient’s beliefs;


7. a close friend of the patient; 8. a clinical social worker. A facility’s policy should be clear on


who can make care decisions for inca- pacitated patients, the order in which the authority shifts to proxies and how to document the authority in patient’s medical record. Staff should be edu- cated and trained on policies and pro- cedures in these situations. Most, if not all, states will have priority rankings of persons who can serve as a proxy. Ten- nessee law contains information about healthcare decision-making in several statutes including section 1200-08-10- .13 in its Standards for Ambulatory Sur- gical Treatment Centers. South Carolina also requires that two physicians docu- ment incapacity and provides the order of consent priority for a patient deter- mined to be incapacitated. Knowing a state’s regulations on the consent prior- ity and recording requirements, as well as procedures for contacting the person who can make decisions, is essential. Just because a friend drove the patient to the surgery center for the procedure and is acting as the responsible adult com- panion to which the patient will be dis- charged does not give the patient’s friend priority over the patient’s spouse, chil- dren, parents, adult siblings or adult rela- tives. Florida statutes even provide a def- inition of “a close friend.” It is essential that ASC leadership and staff know their state regulations about who can make decisions, when and how advance direc- tives can be implemented, who has the authority to consent or refuse the treat- ment when there are no advance direc- tives and if there is a difference in con-


The advice and opinions expressed in this column are those of the authors and do not represent official Ambulatory Surgery Center Association policy or opinion.


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