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The idea of informed consent can be viewed as an old procedure. It is normal and in fact, essential that any medical procedures must be properly informed to the patient. This is being done not only to obtain the patient’s consent, but also to increase the patient’s awareness when it comes to potential medical risks that may come along the way. Informed consent became a commonplace event to which some physicians believe that this is a possible generator of medical malpractice claims. We discussed that in some cases, the hospital itself is being liable to such malpractice and informed consent issue liability. This research also shows that every state in the country has its own laws regarding the prisoners’ rights when it comes to receiving medical treatments and tests, which most of them is similar to one another. Both of these topics boil down into one main idea and that is the patient’s rights. These rights must be provided whether or not a person is a prisoner in order to avoid both medical and legal liabilities on the part of medical practitioners and the hospital they are working at.
When might a hospital have consent-related liability?
Obtaining the patient’s consent is one of the most important things that need to be done prior to the execution of ay involved medical procedure. It is when the attending physician informs the patient of all the details pertaining to such procedure, which includes from the smallest to the most complex details of the medical procedure. If consent from the patient is obtained due to misinformation or lack of information, the physician himself may be liable. However, there are also some events when the hospital is generally involved in a consent-related liability.
Every hospital generally develops list of procedures, surgeries, or even situations to which a proper informed consent must primarily be obtained prior the implementation. The fact of the matter is that the Joint Commission, otherwise known as the JCAHO or Joint Commission on Accreditation of Healthcare Organizations, created a standard, which hospitals should establish (templehealth.org). In addition, policies must be followed in terms of which care and procedure, services, or treatment requires the informed consent. Therefore, if these policies are not followed, based on the established guidelines, the hospital might be liable for any consent-related issues. That is because the hospital administration is responsible in ensuring that the policies and procedural guidelines regarding informed consent must be followed at all times.
In order for thee physicians to accurately explain the information to their patients, the hospital must also set some platforms that are designed to walk the doctors and the patients in terms of providing the explanation process (Gatter, 2006). This will help the doctors, especially the ones that are quite new with their profession, the process of explaining the involved treatment options as well as the disclosure of both the risks and benefits of such options.
The hospital might be liable of these will not be followed by their physicians. Therefore, it is also the hospital’s responsibility to constantly remind their medical practitioners through various ways possible. Moreover, the process must also cover the proper recording of patient’s consent as well as the refusal from any treatment. Whether or not the patient agrees with the medical procedure, the hospital must include in their guidelines that these records must also be incorporated with the patient’s medical chart.
The hospital is considered as the common place where the medical practitioners provide medical treatments and options to their patients. Therefore, it is the hospital’s responsibility that every medical procedure that is involved in the process must be based on the guidelines establish by the hospital administration. It is a matter of how they are capable of providing rules as to how their doctors will follow the necessary steps in explaining everything to their patients. This is in order to avoid any potential malpractice liability against their doctors. Gatter (2006) also says that the law is recognizing various situations when it comes to a hospital being liable in any claims of informed consent case. For example, where the hospital employs the physician who is involved in breach of privacy or where such breach concerned participation in any medical researched that is housed by the hospital itself (Gatter, 2006). These events are narrowly tailored, which may not really affect how the hospitals give information to their patients when it comes to treatment process in the huge majority of every day patient encounters.
Treatments or tests have various state laws authorized for prisoners or criminal suspects
The United States Constitution is requiring all prison officials to give all federal and state detainees with sufficient medical care (columbia.edu). This means that prisoners and criminal suspects who are detained and have an on-going case trial have the right to receive medical care. Chapter 23 of the Jailhouse Lawyer’s Manual (columbia.edu) says that in New York State, every prisoner has the right to receive a psychiatric care if it is needed. In fact, almost all of the states have similar rules when it comes to providing medical treatments to prisoners. The state of New York views the psychiatric care provision as important as providing physical health care. On the other hand, the state of California issued an order stating that adequate resources should be provided to prisoners who have mental illnesses (columbia.edu).
Aside from the mental and psychological heath care that these two states provide to their prisoners, they also ensure that any physical health issues of their inmates must be addressed given that the current medical status of the patient has been proven real.
On the other hand most states laws have also established rules in relation to prisoners with physical disabilities. Inmates or prisoners, whether convicted or still having an on-going trial are entitled to receive some certain reasonable accommodations based on the American with Disabilities Act (hg.org). Additionally, the medical and mental health care treatments are only authorized to be adequate and not to be the best available just like the standard treatment process for people outside the prison.
In Texas State, prisoners are also getting the same medical treatments similar with New York and California. In addition to this, inmates in Texas prison are also getting substance abuse treatment. The program is called Substance Abuse Treatment Program (state.tx.us), which covers various sub-programs such as In-Prison Therapeutic Community (IPTC), which gives services to offenders who are qualified and identified as people who need drug abuse treatment. This program is authorized by the state law and covers a six months treatment while the person still an inmate, then followed by a three months residential aftercare through the transitional treatment center (state.tx.us).
There are also some other forms of tests that are being conducted inside the prison within the state of Texas. An HIV infection tests are given to the inmates who are suspected to be a carrier of such virus (Raimer, Murray, & Pulvino, 2010). Moreover, the Texas state law also authorizes the state prisons to conduct a Hepatitis C virus or HCV tests among the prisoners who are experiencing the sign and symptoms. It has been authorized due to the fact that HCV’s prevalence is considered to be higher among the prisoner populations as to compare with overall population of the United Sates.
Importance of obtaining consent
As previously discussed, obtaining consent from the patient is not just an important step before conducting a specific medical procedure. We would rate the importance of obtaining consent as to be one of the highest priorities that both patient and doctor must primarily achieve. Additionally, obtaining consent is the doctors’ ethical way of informing his or her patient regarding the required medical treatment. This will also help the patient with decision-making process based on the benefits and possible health risks encompassing the treatment. It will also help in educating the patients in terms of the possible alternatives if ever a refusal will be given against the treatment.
On the other hand, obtaining consent is not just being done for the benefit of the patients. It will also benefit the doctors in terms of establishing a good patient-doctor relationship through open communication and adequate provision of information about the treatment. The process of obtaining the patient’s consent allows the latter to be keenly involved in the overall decision-making process and also establishes goals and expectations from his or her doctor (aaos.org). Therefore, both the doctor and the patient will have a successful medical encounter through effective communication.
Another benefit of obtaining consent for the medical practitioner is that it will enable them to follow the basics of medical ethics such as respecting the patient’s autonomy, non-maleficence and beneficence or doing good by not causing harm (aaos.org). These actions will promote the ethical approaches that every medical practitioner must exercise.
The highest rating decision over the essence of obtaining consent can also be explained by the fact that there can be no other important things than human health. Therefore, patients must be fully aware of all the details pertaining to his own health, including the health risks, alternative treatment options and more importantly, the benefits that he or she can get from agreeing upon the treatment options.
Risk to the hospital and patient if consent is not obtained
If consent is not obtained, the patient is at risk of getting a medical procedure that he or she might not agree with. The patient may be at risk of becoming a victim of medical malpractice if the doctor who will administer the treatment is careless with his profession. In addition, the patient’s rights are at risk of being violated due to lack on information needed to be discussed with him before any medical treatment transpires. On the other hand, the hospital is at risk of being liable if consent is not obtained as the hospital must ensure that proper guidelines in obtaining consent is done accordingly by their medical practitioners. Therefore, any event of not obtaining consent from the patient could provide a bad reputation to the hospital, which may also put their profitability at risk.
Every person must be aware of his rights not only as a citizen of the country, but also as a possible patient. This will give them the advantage of having alternative options once they get into a specific medical procedure. Thus, knowing what their patients’ rights are will enable them to make decisions for their own health. Just like the informed consent, a patient has the right to know every details pertaining to his or her health as well as the treatment options including their risks.
American Academy of Orthopaedic Surgeons. (n.d.). Importance of Good Communication in the Physician-Patient Relationship Information Statement - AAOS. Retrieved from http://www.aaos.org/about/papers/advistmt/1017.asp
Columbia University. (2011). A Jailhouse Lawyer's Manual - Chapter 23: Your Right to Adequate Medical Care. Retrieved from http://www3.law.columbia.edu/hrlr/jlm/chapter-23.pdf
Gatter, R. (2006). The mysterious survival of the policy against informed consent liability for hospitals. Notre Dame Law review, 81(4), 1203-1273.
HG.org Legal Resources. (2014). Prisoner's Rights Law - HG.org. Retrieved from http://www.hg.org/prisoner-rights-law.html
Raimer, B. G., Murray, O. J., & Pulvino, J. S. (2010, May). Health Care in the Texas Prison System. Retrieved from http://www.utmbhealth.com/doc/Page.asp?PageID=DOC000496
Temple Health. (n.d.). A Practical Guide to Informed Consent. Retrieved from http://www.templehealth.org/ICTOOLKIT/html/ictoolkitpage5.html
Texas Department of Criminal Justice. (n.d.). Rehabilitation Programs Division - Substance Abuse Treatment Program. Retrieved from http://tdcj.state.tx.us/divisions/rpd/rpd_substance_abuse.html
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