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Defining the Scope of Implied Consent in the Emergency Department: Shortchanging Patients' Right to Self Determination

The concept of informed consent for medical treatment has been well established as a necessary element in ensuring compliance with patients’ right to self determination and respect of individual autonomy. From a normative perspective, the pluriformity of personal, social and cultural value systems in society and the unlimited variation of individual circumstances in which medical decisions must be made, justify patients’ participation in the decision-making process. Physicians may have expert knowledge about probable risks and benefits of medical treatments, but patients are most knowledgeable about their goals and values (Moskop 1999). Legally, informed consent authorizes the institution to provide the proposed treatment and implies that duties to information disclosure have been fulfilled (Faden and Beauchamp 1989). Practical challenges to informed consent are more likely to occur in situations of medical emergency, frequently associated with care provided in emergency departments (EDs). Interventions are then commonly justified by invoking implied consent or assuming therapeutic privilege. Both scenarios allow for the provision of medical care without explicit patient consent. Obtaining appropriate informed consent is time consuming, as it requires the disclosure as well as verification of the patient’s understanding of all information pertinent to decision making. However, in the ED, time is often appreciated or perceived as a scarce and precious commodity. To ameliorate the problem of time, some practitioners might be tempted to believe that they are exempt from obtaining informed consent. They ground this belief on the assumption of either implied consent or therapeutic privilege. Implied consent applies only to emergency situations and the patient incapable of consenting. However, 49% of ED visits qualify as non-urgent, greatly reducing the applicability of implied consent (Young et al. 1996). The remaining 51% of ED visits may be urgent but that in itself does not justify the assumption of implied consent because only a small number of cases require direct intervention to prevent immediate death