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Welcome to Vegas Lawyer. This site is for people who were hurt in Nevada. Contact us for a free consultation. You may want to read the Nevada Personal Injury Law Introduction on our home page. Also, you can get an overview of the different types of claims such as Wrongful Death, Auto Accidents, Premises Liability, and Products Liability before you explore the Article below if you reached our site through this page.

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  • Negligence Explained In Easy Terms
  • Comparative Negligence In An Auto Accident
  • Auto Insurance Answers
  • Informed Consent In Behavioral Treatment


  • Informed Consent In Behavioral Treatment

    Informed consent has both legal and ethical roots. It assumes that individuals cannot exercise autonomy and choice in health care decisionmaking unless they have adequate information and can make a reasoned choice. There are three elements to informed consent: It must be voluntary, it must be competent, and it must be knowledgeable or informed.

    Informed consent must be voluntary. Legal consent cannot be the product of deceit or duress. For example, a contract entered into under duress will not be enforced by the law. Similarly, a health care decision made under duress may invalidate the patient's consent. As the discussion below suggests, the question of "voluntariness" may take on new importance in some types of managed care settings.

    Informed consent must be competent. There has been significant controversy regarding the question of competency and how it should be measured. Behavioral health care providers sometimes are accused of judging a client competent as long as the client adheres to treatment recommendations, while finding the client incompetent when the client declines treatment. Practitioners often express frustration with the law's insistence that individuals, even an individual who has just been civilly committed, are considered competent by the law for the purposes of making treatment decisions until specifically found to lack competence.

    There is also not always consensus on what "competence" means. Roth and his colleagues, in a review, found five tests that have been suggested or employed:

    1. Expression of a choice. Under this test, if the client expresses any choice about the treatment decision, he or she is judged competent. This test has found few adherents (and none among courts) because it ignores completely the client's underlying mental status and processes.

    2. The treatment decision is rational. The client is considered competent if the decision he or she reaches is the decision that would be reached by a "reasonable" client. This test had significant support historically, but in recent years has lost favor because it makes the exercise of autonomy subject to a definition of reasonableness imposed by others.

    3. The process by which the decision was reached was unimpeded by mental or emotional illnesses or other factors, for example, substance abuse. This test, in common use today, examines the underlying processes by which the client reached his or her decision. It tolerates choices that others might consider irrational, so long as the client's decisionmaking processes were not affected by illness or mental disorder and so long as the patient had "rational reasons" for the decision. This test is biased toward treatment adherence, because whether the patient had "rational reasons" for his or her decision may turn on the treatment provider's views on the wisdom of the patient's ultimate decision. The decision not to accept treatment may be viewed less favorably than the decision to accept it.

    4. The client had the ability to understand the choices he or she had and the consequences of the choice he or she made. This test, in the view of Roth and his colleagues, is most consistent with the law of informed consent. It examines whether the patient had sufficient ability to comprehend those things deemed important by the law in making decisions about treatment. It does not concern itself with whether the patient then reaches a decision that is different from the decision that the treatment provider or another person might make.

    5. The client had actual understanding. This may be the most difficult test to assess, because it requires something more than assessing the client's intellect and cognitive abilities. It requires an assessment as to whether the patient truly understood information conveyed, choices to be made, etc. However, because it is difficult to measure what constitutes actual understanding, this test is rarely, if ever, applied in practice.

    Competency is also a fluid concept, both substantively and temporally. As a general rule, an individual must be "more" competent the more intrusive or consequential the treatment proposed. For example, more competency is required to consent to electroconvulsive therapy than to take aspirin. Also, an individual may be competent one day, but incompetent the next, and then competent again the third, depending on the type of illness and its effects. Because of this, there has been a movement in the recent past to encourage client choice in anticipation of incompetency, for example, through living wills.

    Finally, recent research done under the auspice of the MacArthur Foundation's Research Network on Mental Health and the Law has resulted in the development and testing of a number of new instruments for assessing competency to make treatment decisions (Grisso et al. 1995a, 1995b).

    Informed consent must be knowledgeable. An individual must have adequate knowledge to give informed consent. As with competency, the definition of what constitutes "adequate knowledge" has changed as deference to the principle of autonomy has increased. As a general rule, a client must be informed of the treatment proposed, its risks and benefits, the risks and benefits of forgoing treatment, and the risks and benefits of alternative treatments. In the past, a treatment provider had broad discretion to withhold information if the provider believed that disclosure might make it unlikely for the client to undergo needed treatment. While many State laws continue to recognize some variation of this principle, most courts now ask whether a person in the patient's position would want the information. This perspective expands the amount of information made available, because courts generally assume a patient would want all information pertinent to the decision, even if a risk might be remote or the information might unduly heighten the patient's anxiety if revealed.

    This information came from a
    SAMHSA online article.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

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