The rural N.Y. volunteer fire department I ride with was dispatched to a supermarket for a woman who had fainted. Another EMT-B and I arrived on scene to find a young woman sitting on a chair at the cash register, looking dazed but conscious. The manager of the store explained that she had called 9-1-1 after the cashier slumped to the floor while ringing up a customer and then regained consciousness almost immediately. My partner took a set of vitals while I questioned the patient about her situation. She stated that she was a 17-year-old diabetic who had miscarried a few days earlier. We found her alert and oriented to person, place and time, and my partner stated that her vitals were within normal limits except for a slightly high blood pressure, which the patient described as normal for her. Still, my partner and I both felt that it was in the patient’s best interest to go to the hospital and get checked out.
At this point, the patient became emotional and said that she didn’t want to go. We explained our reasons and stated that because she was under age 18, she must go to the hospital by law. She reluctantly consented, and we transported her to the hospital without incident. Back in quarters, my partner and I wondered whether the patient’s status as a recently pregnant woman should have influenced our decision not to allow a refusal.
A recent study of EMS calls in Utah showed that 5.1% resulted in a situation in which the patient refused medical transport in direct conflict with the advice of the providers on scene. Although this number may not seem particularly large, it’s large enough to point out the need for us to refresh ourselves on the protocols and laws involved, because these situations can be both confusing and potentially dangerous for the patient and the provider.
PHOTO KEVIN LINK; INSET PHOTO CRAIG JACKSON
Since 1970, the U.S. Department of Transportation has set forth the standards and curriculum for EMS. Each states that all patients have the right to accept or refuse care as an informed decision about the care to be provided and the risks. This is the concept of”žinformed consent that has become universal to all health-care professionals.
The major exception to this rule, as judged by the courts and our social ethics, is that in an emergency situation, an incapacitated person may be treated by EMS with lifesaving care under the assumption that a normal person would consent to prehospital care. This concept has come to be known as the”ždoctrine of implied consent. But let’s first discuss the history behind informed consent before we get into the exceptions.
The patient’s rights movement of the 1980s and ’90s ushered in the concept of a patient’s right to refuse medical care of any kind. The Supreme Court finalized this issue in 1990 in”žCruzan v. Director, Missouri Department of Health. In it they stated that the “United States Constitution would grant a competent person a constitutionally protected right to refuse life-saving medical treatment.””ž Whether for financial, spiritual or religious reasons, a patient has the ultimate say over what is done to his or her body. This concept was best stated by Justice Cardozo of New York in 1914 when he wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”
This definition points out the two most important stipulations of informed consent and, thus, the two most important stumbling blocks that EMS personnel come across in the field: a patient’s capacity to make decisions and their age.
The medical term that defines whether or not a person is of “sound mind” is”žcapacity. A person has decision-making capacity when they are able to understand the risks and benefits of both proposed treatment and non-treatment. In truth, this can be a very difficult evaluation to undertake in the field, but many EMS protocols use “alert and oriented to person, place and time” as a baseline for determining capacity.
If a patient is deemed incapacitated by illness or injury, the exception to informed consent is viable. This is true only for an emergency situation and only if two conditions can be met as stated by the National Association of EMS Physicians: First, the patient is incapacitated by shock or trauma and unable to give informed judgment. Second, a life-threatening or health-threatening disease or injury that requires immediate treatment is present, and delay would mean death or impairment.
In these specific situations, EMS is allowed to suspend the concept of informed consent and transport the patient, even against their wishes. In this case, as with many others, however, field providers must contact medical control for approval because only a trained physician can declare capacity.
State policies on consent
Although implied consent is referenced in the most recent curriculum for EMTs, it’s expressly stated for application only in some states, including but not limited to California, Florida, New York, Hawaii, Kansas, Missouri, Montana, New Mexico, South Carolina and Texas. The law in these states allows EMS personnel to transport an incapacitated or intoxicated person against their wishes with the approval of either online or offline medical direction, depending on the state. Title 29, chapter 401, section 445 of Florida Statutes is a prime example. It states that a health-care provider may examine, treat and transport a person, even against their wishes, if that person is intoxicated, under the influence or is experiencing an emergency condition, and a normal patient would reasonably undergo examination, treatment or transport.
Arkansas, Mississippi and Nebraska allow for transport against the patient’s wishes, but only when the patient shows signs of material and morbid change. Other states, such as Iowa, Indiana and New Jersey, although not deliberately stating the doctrine of implied consent, remove civil liability from any health-care provider who does not obtain consent if the provider has acted in good faith in an emergency situation.
Finally, such states as Alabama and Pennsylvania include implied consent in their EMS protocols for dealing with an incompetent patient’s refusal, but it’s not written into the state’s statutes. In these situations, however, online medical direction must be established before transport.
The other major component of informed consent is the caveat that the patient must be of “adult years.” By law, minors cannot provide informed consent to medical care and, therefore, cannot legally refuse care either. A child’s medical decisions are made by their parent or legal guardian, or in emergency situations might fall under the category of implied consent. Some states, including California, New York and Alabama, also allow minors older than 12 years of age to consent to certain types of health care with regard to drug rehabilitation, sexually transmitted diseases (STDs) and rape.
A problem arises when EMS providers encounter an emancipated minor. They are viewed by law as having the privileges of adults and, therefore,”žcan”ž provide informed consent. The major problem for EMS providers is that emancipatory status is dictated by the states rather than on a national level. Thus, prehospital providers must know their state’s laws in order to provide the most informed care.
Most states set the minor age limit at 18 years of age; however, Mississippi, Alabama, Alaska, Nebraska and Wyoming set the age at 19. All states agree that certain lifestyles or decisions should entitle a person to emancipation. Court rulings and proof of financial independence entitle a minor to adult privileges, including consent and refusal, in all states. Some examples are provided here, but this list is by no means exhaustive. With regard to health-care decisions and consent, Alabama states that any 14 year old, high school graduate, married person or pregnant female may give consent for themselves or children. Delaware has similar standards, except that the age is still 18 and pregnancy gives the minor consent rights only for their child but not themselves.
Illinois gives any 18 year old, married person, parent or pregnant person full rights for both themselves and their child. Indiana, like Alabama, lowers its consent age to 14 in terms of health-care consent, and includes military service but excludes pregnancy or parenting as criteria. Maine also has these rules, except the age of majority remains at 18.
Montana Code dictates that minors may consent to health care if they are married, parents, pregnant, graduated from high school or have a communicable disease or substance abuse problem. New Jersey law grants health-care power to all married and pregnant minors on behalf of themselves and their children. North Carolina, on the other hand does not consider pregnancy to be emancipating, but military service is. Texas also grants emancipatory status to active service men and women, as well as 16 year olds who live apart from parents, pregnant women with respect to pregnancy, or parents for themselves and their children.
New York, Florida, Pennsylvania and Utah also consider pregnant females to be emancipated, although they stipulate that a pregnant female has consent only with regard to prenatal care. New York, California, Pennsylvania and Florida also stipulate that any parent is emancipated. Finally, active duty in the military grants emancipated status in New York and California.
This is only a small listing of the differences in state policies on consent. Individual providers should check their county’s protocols for further details about how their emergency medical system deals with refusals for minors and adults.
Managing patient refusal“ž
Members of the Dallas EMS system developed the Parkland Protocol to deal with refusals more efficiently. The first step is to determine the patient’s emancipation status based on state laws. Second, the provider must determine the level of competency or consent based on the three categories of voluntary, involuntary and implied. Parkland Memorial Hospital provides 24-hour legal counsel to help obtain permission and to support the medical director’s decision.
Tips to avoid refusals: First, always attempt to establish a good rapport with your patient. We must remember that we can often be battling unseen forces, such as negative feelings toward hospitals, the medical profession or insurance companies. Showing a friendly and helpful face to the patient could make the difference when you must try to convince them to go to the hospital for their own good. Try to find a balance between what’s best for them physically and what they’re willing to agree to mentally.
Second, remember to contact online medical direction when you have a difficult case and then document it. Talking to a physician has been proven to change some patients’ minds.
If, however, the patient still refuses care or transport, make them aware of all of the risks and rewards of treatment and non-treatment as necessary in implied consent, complete a patient refusal form (usually located on the back of a standard PCR), and obtain the patient’s signature. Document your medical opinions and the patient’s reasoning and steps taken to convince the patient to accept treatment and transport.
Finally, encourage the patient to seek health care immediately if certain symptoms worsen or “if any of the following happen,” and then give them a list of symptoms.
Always put the patient’s welfare first.”ž
Jon Belding, a first-year medical student at Case Western Reserve University School of Medicine in Cleveland, is interested in pediatric surgery. He volunteered as an intermediate firefighter/ EMT-B in the Hamilton Fire Department while earning his BA in History at Colgate University in Hamilton, N.Y.”ž”ž
Acknowledgement: Thanks to W. Ann Maggiore, JD, NREMT-P, for her expert advice and legal review of this article. Also, thanks to Edward T. Dickinson, MD, NREMT-P, FACEP, for his guidance. Finally, thanks to my wife, Jamie, for her love and support.
- Knight S, Olson L, Cook L, et al: “Against all advice: An analysis of out of hospital refusals of care.” Annals of Emergency Medicine. 42(5):689à696, 2003.
- Mistovich J, Hafen B, Karren K: Prehospital Emergency Care, sixth ed. Brady, Upper Saddle River, N.J. 33, 2000.
- Wolfberg D: “Refusing emergency medical care. How far do a patient’s rights go?” JEMS. 20(1):133à134, 136, 1995.
- Mottley L: “Refusal of prehospital care,” In EMS Medical Directors’ Handbook: Prehospital Systems and Medical Oversight. Ed. Kuehl A. Mosby Lifeline. St. Louis: 375à377. 1994.
- McCrary S: “Patient consent for emergency care,” Recent State Initiatives, 3/31/99.
- “Emergency examination and treatment of incapacitated persons.” Florida Statutes, 2004, Title XXIX, Ch. 401 _445;
- “Exemptions from liability in certain circumstances.” Iowa Code, Title 4, Ch. 147A _10.
- “Refusal of transport or care of the ill patient.” Alabama ALS Protocols.”žwww.adph.org/EMS/proto1.pdf.
- EMS policies and procedures for Contra Costa Health Services. “Patient Refusal of Emergency Medical Care,” Policy #10; 7/1/99.
- Mancini M, Gale A: Emergency Care and the Law. Rockville, Md.: Aspen Publications. 99, 1981.
- Committee on Pediatric Emergency Medicine. “Consent for emergency medical services for children and adolescents.” Pediatrics. 111(3):703à706, Table 1, 2003.
- “When minor may give consent generally.” Alabama Code, Title 22, Ch. 3, _4; 2/12/2005.
- “Consent to healthcare of minors.” Delaware Statutes, Title 13, Ch. 7, _707, 2/12/2005.
- “Consent by Minors to Medical Procedures Act.” Illinois Compiled Statutes, Title 410, Ch. 111, _210/.01, 2/19/05.
- “Medical consent.” Indiana Code, Ch. 15, Article 36, _1à3, 2/19/2005.
- “Consent of minors for health services.” Maine Statutes, Title 22, Ch. 260, _1503, 2/19/2005.
- “Validity of consent of minor for health services.” Montana Code Annotated 2003, Title 41, Ch. 1, _402, 2/19/2005.
- “Consent by minor to medical, surgical care.” New Jersey Statutes, Title 9, Ch. 17, _1, 2/20/2005.
- “Exceptions.” North Carolina Statutes, Ch. 3B, Article 35, _3402, 2/20/2005.
- “Consent to treatment by child.” Texas Statutes. Title 2, Ch. 32, _32.003, 2/20/2005.
- Bureau of Emergency Medical Services, “Patients care and consent for minors,” New York State Department of Health, 11/24/99.
- Ayres J: “Legal considerations in prehospital care.” Emergency Medicine Clinics of North America. 11(4):856, 1993.
- Genell LN: Legal Concepts and Issues in Emergency Care. W.B. Saunders. Philadelphia: 187, 2001.”ž