Ryder Trauma Florida Law and Bioethics

The term “valid consent” is more accurate than “informed consent” because it makes clear that for consent to be adequate, an adult patient must (i) be informed, (ii) have capacity and (iii) be making a voluntary decision – i.e., informed is not enough. The same is true when a patient wants to refuse treatment, including a life-prolonging treatment: an informed, capacitated, and voluntarily acting patient may refuse any treatment.

Ethics and Florida law are in sync on this. In both domains, obtaining consent demonstrates respect for patients’ right to agree to be touched or for their information to be used for research. Florida law requires clinicians obtain consent to treat their patients. Generally, one must not treat a patient without valid consent.

In emergency settings, however, consent is often and correctly implied or assumed. That is, if an unconscious and hence incapacitated trauma patient will die without treatment, it may be inferred that reasonable people would consent to the treatment if they were able. Therefore, such patients may be treated without explicit consent.

Generally, and with rare exceptions, patients have capacity if they can understand the information they are given and can appreciate its importance. There is a large literature on assessing capacity. Florida law says only that a physician must assess capacity – but not how to do so.

Patients should be regarded as having capacity until a physician documents otherwise. “Competence” is a formal legal concept. It is determined by a judge (often after testimony by physicians or psychologists).

There are several tools to guide capacity assessment, e.g., https://oscestop.com/Assessing_capacity.pdf.

Guardians are appointed by courts; surrogates are chosen by patients; proxies are appointed by hospitals. If a patient lacks capacity, one of them must consent to or refuse treatment (unless it’s an emergency).

In all cases, the legally authorized representative must consent or refuse based on what the patient would have wanted if the patient had capacity. If this is not known, the representative and team must determine what is in the patient’s best interest.

A court-appointed guardian has primary authority; guardians are rare in most contexts. Surrogates are next; patients may appoint anyone to serve as surrogate. This is done with an advance directive. An advance directive may be written or uttered; if the latter, it must be witnessed. A responsible surrogate has priority over all others, including who might be “closer” family members. For instance, if a friend is named as surrogate, the friend has authority over a spouse or sister.

Proxies are appointed by institutions when patients fail to name a surrogate. They are appointed in this order, according to Florida law:

• Guardian
• Spouse
• Adult child or a “majority of the adult children who are reasonably available for consultation”
• A parent
• Adult sibling or a “a majority of the adult siblings who are reasonably available for consultation”
• An adult relative who “has exhibited special care and concern for the patient” etc.
• A close friend
• A social worker (at UM and JMH through the Social Work Advantage firm)

A common mistake is to appoint the oldest or most aggressive child or sibling as proxy. The law says all must be included, if they are willing to serve.

We commonly refer to “the family” when we should be talking about a specific person or group of people. The phrase “the family” has no meaning in this context.

Surrogates and proxies should not be asked to “make a decision” regarding consent or refusal. Their job is to say what the patient would say or, if that is not known, to work with the team to determine the patient’s best interest.

Ethics and the law distinguish between patient refusals and requests. Valid refusals should be respected, but requests must be evaluated for medical efficacy and appropriateness. Interventions you are reasonably sure will not benefit a patient need not be offered or provided. Requests for such treatments do not impose a duty on clinicians. Jackson and UM have policies to provide guidance in such cases.

Grieving surrogates or proxies sometimes ask for interventions that will not work or, worse, will harm a patient. Such requests are an opportunity for gentle but firm communication. Decisions not to provide a treatment which according to medical judgment will not benefit the patient should be supported with careful documentation. If medically accurate, the Cerner smart phrase for nonbeneficial treatment should be entered in the chart. Legally authorized representatives should be told that a requested treatment will not be provided because it is not right for the patient.

The Jackson Health System Ethics Service/Committee is available to provide guidance and support in such cases.

The Committee can receive requests for consults or for educational in-services through the Cerner system (be sure to provide a full call-back number) or by calling 305-243-2222.