Community Grievance Decision Digest

CONSENT - MUST BE INFORMED

THE LAW:

“Subject to the rights of patients provided under this chapter, the department, county departments under s. 51.42 or 51.437, and any agency providing services under an agreement with the department or those county departments have the right to use customary and usual treatment techniques and procedures in a reasonable and appropriate manner in the treatment of patients who are receiving services under the mental health system, for the purpose of ameliorating the conditions for which the patients were admitted to the system. The written, informed consent of any patient shall first be obtained, unless the person has been found not competent to refuse medication and treatment under s. 51.61 (1) (g) or the person is a minor 14 years or older who is receiving services for alcoholism or drug abuse or a minor under 14 years of age who is receiving services for mental illness, developmental disability, alcoholism, or drug abuse. In the case of a minor, the written, informed consent of the parent or guardian is required, except as provided under an order issued under s. 51.13 (1) (c) or 51.14 (3) (h) or (4) (g). If the minor is 14 years of age or older and is receiving services for mental illness or developmental disability, the written, informed consent of the minor and the minor's parent or guardian is required. A refusal of either a minor 14 years of age or older or the minor's parent or guardian to provide written, informed consent for admission to an approved inpatient treatment facility is reviewable under s. 51.13 (1) (c) 1. and a refusal of either a minor 14 years of age or older or the minor's parent or guardian to provide written, informed consent for outpatient mental health treatment is reviewable under s. 51.14."

§ 51.61(6), Wis. Stats. [Emphasis added.]

“Any informed consent which is required under sub.(1)(a) to (i) may be exercised by the patient’s legal guardian if the patient has been adjudicated incompetent and the guardian is so empowered, or by the parent of the patient if the patient is a minor.”

§ 51.61(8), Wis. Stats. [Emphasis added.]

"‘Informed consent’ or ‘consent’ means written consent voluntarily signed by a patient who is competent and who understands the terms of the consent, or by the patient's legal guardian or the parent of a minor, as permitted under s. 51.61(6) and (8), Stats., without any form of coercion, or temporary oral consent obtained by telephone in accordance with s. HFS 94.03 (2m).”

 HFS 94.02(22), Wis. Admin. Code [Emphasis added.]

“INFORMED CONSENT. (1) Any informed consent document required under this chapter shall declare that the patient or the person acting on the patient’s behalf has been provided with specific, complete and accurate information and time to study the information or to seek additional information concerning the proposed treatment or services made necessary by and directly related to the person’s mental illness, developmental disability, alcoholism or drug dependency, including:

(a) The benefits of the proposed treatment and services;

(b) The way the treatment is to be administered and the services are to be provided;

(c) The expected treatment side effects or risks of side effects which are a reasonable possibility, including side effects or risk of side effects from medications;

(d) Alternative treatment modes and services;

(e) The probable consequences of not receiving the proposed treatment and services;

(f) The time period for which the informed consent is effective, which shall be no longer than 15 months from the time the consent is given; and

(g) The right to withdraw informed consent at any time, in writing.

(2) An informed consent document is not valid unless the subject patient who has signed it is competent, that is, is substantially able to understand all significant information which has been explained in easily understandable language, or the consent form has been signed by the legal guardian of an incompetent patient or the parent of a minor, except that the patient's informed consent is always required for the patient's participation in experimental research, subjection to drastic treatment procedures or receipt of electroconvulsive therapy."

(2m) In emergency situations or where time and distance requirements preclude obtaining written consent before beginning treatment and a determination is made that harm will come to the patient if treatment is not initiated before written consent is obtained, informed consent for treatment may be temporarily obtained by telephone from the parent of a minor patient or the guardian of a patient.  Oral consent shall be documented in the patient’s record, along with details of the information verbally explained to the parent or guardian about the proposed treatment.  Verbal consent shall be valid for a period of 10 days, during which time informed consent shall be obtained in writing.”

(3)  The patient, or the person acting on the patient’s behalf, shall be given a copy of the completed informed consent form, upon request.”

(4)  When informed consent is refused or withdrawn, no retaliation may be threatened or carried out.”

HFS 94.03, Wis. Admin. Code [Emphasis added.]

“Except in an emergency when it is necessary to prevent serious physical harm to self or others, no medication may be given to any patient or treatment performed on any patient without the prior informed consent of the patient, unless the patient has been found not competent to refuse medication and treatment under s. 51.61(1)(g), Stats., and the court orders medication or treatment.  In the case of a patient found incompetent under ch. 880, Stats., the informed consent of the guardian is required.  In the case of a minor, the informed consent of the parent or guardian is required.  Except as provided under an order issued under s.51.14(3)(h) or (4)(g), Stats., if a minor is 14 years of age or older, the informed consent of the minor and the minor’s parent or guardian is required.  Informed consent for treatment from a patient’s parent or guardian may be temporarily obtained by telephone in accordance with s. HFS 94.03(2m).

HFS 94.09(4), Wis. Admin. Code [Emphasis added.]

“The informed consent document [for filming or taping] shall specify that the subject patient may view the photograph or film or hear the recording prior to any release and that the patient may withdraw informed consent after viewing or hearing the material."

 HFS 94.18(3), Wis. Admin. Code [Emphasis added.]

NOTE: For summaries of cases on consent, see: Guardianship; Research; Refusing Medications; Filming and Taping; and Drastic Treatment.

DECISIONS

1.      A patient wanted to continue the individual therapy she had received for 9 years, but the service provider shifted to only doing group therapy with her.  She had been made aware months in advance of the upcoming change in services.  But her interim plan for transitioning to group therapy was not documented or consented to by the patient.  Thus, her right to treatment and her right to informed consent were violated.  It was recommended that the service provider create a space on its treatment plans for the patient’s signature and that they fully document all services received by the patient.  (Level III decision in Case No. 01-SGE-09 on 3/27/02.)

2.      A therapist did not present his written assessment and treatment plan to the patient prior to beginning treatment.  The treatment plan was developed after the first session but not signed by the patient until after the third session.  The plan should have been provided to the patient prior to his second session. This was a violation of the patient’s rights to participate in his treatment planning and to provide informed consent for treatment.  (Level IV decision in Case No. 01-SGE-07 on 3/29/02, reversing the Level III decision.)

3.      Where a doctor knew or should have known that his patient was seeing other professionals involved in her care, the doctor has a duty to at least attempt to inform the other therapist involved of a change in medication.  If the patient’s consent is required, the doctor should ask for it.  Where no such attempt was made here, the doctor violated the patient’s rights. (Level IV decision in Case No. 02-SGE-04 on 9/19/03.)

4.      An ex-patient complained about a lack of billing information about the cost of his stay at a psychiatric hospital.  At the time of admission to the hospital, the patient and his wife spoke with staff in the Business Office about the cost of care.  The couple expressed concerns that their insurance would only cover psychiatric care for a limited time.  They requested to be informed by the Business Office when he had reached the limit the insurance would pay, and the hospital assured them that they would do so.  Later, during his stay, a facility representative informed the patient that he was close to exhausting his insurance benefits.  At that time, he signed a form called the "Beneficiary Notification of Noncovered Care: Disclosure and Acknowledgement statement of Noncovered Services."  The signed form acknowledged that he wished to stay at the hospital to receive services and that he was solely liable for payment of the services that would not be covered by his insurance benefits.  The ex-patient said that he did not recall seeing or signing this form but his signature on it appears to be on it.  One important question is whether or not the form is legally valid as an informed consent document.  Since he was a legally competent adult, the hospital presented this form to him in good faith, as he requested.  However, his inability to recall signing the form begs the question of “capacity” rather than competence during his hospitalization.  Certain diagnostic factors indicated that he may not have had a reliable functional capacity to understand the implications of the form he signed, and may account for his inability to recall signing it.  The hospital should have gotten his consent on admission to share his billing information with his wife so that they could inform her, too, when the insurance funds were running out.  (Level III Decision in Case No. 03-SGE-07 on 4/22/04.)

5.      Where a client participated in a mental health assessment, her right to provide informed consent to treatment was not violated because she was not yet in treatment.  By her cooperation, she gave her implied consent to participate in the evaluation and assessment. This was adequate to begin that assessment process.  (Level III Decision in Case No. 05-SGE-003 on 6/8/06)

Last Updated: November 07, 2006