How does assault relate to informed consent in medical treatment?

Answer 1

This is a little tricky to explain, but in medical, nursing, and dental care, there is implied consent, informed consent, and "a tort" which is technically assault.

"Implied consent" refers to the implied permission a patient gives. For example, a patient visits a doctor; a physical examination is a common part of a doctor visit. A patient "gives" implied consent agreeing to "be touched" for medical purposes by 1. making the appointment 2. coming into the office 3. entering the exam room 4. complying with requests, such as to remove clothing for the exam and lastly, 5. actually being touched for the exam. At any point, a patient can say, "No." However, a natural consequence is the Doctor will likely be irritated at the refusal to allow him or her to do his job. So, "No" should be reserved for ONLY the most extreme reasons. HOWEVER, any patient still retains the right to say "No" at any time.

"Informed Consent" is much different than "implied consent". Let's say you go to an E.R. You give implied consent to a Triage Nurse to take Vital Signs but in that stage, the nurse also has you sign forms if you haven't already. One of the forms is a consent to treat. You can withdraw that consent at any time-- again, there are logical consequences to withdrawing consent. But, let's say you need more than the typical routine ER tests such as blood work or X-Ray. Let's say you need surgery. Surgery requires an "informed consent" so that you are told 1. what will be done 2. the risks (a surgical release covers much more but these 2 are basic ones on the form). "Informed consent" gives you all the information that protocols say should be given, plus you have time (except in dire emergencies) to ask questions, etc. You must sign the papers, or a relative signs, before surgery begins.

Usually, a signed "informed consent" say for surgery cannot develop into a "tort" of assault UNLESS a patient would say, "NO" or "I've changed my mind" or "Don't touch me" at any point up until anesthesia is begun (obviously, the patient can't speak then). If a patient tells a surgical scrub nurse, "do not touch me," everything should STOP. The patient would not be draped; no betadine to the skin; no anesthesia. However, most patients receive pre-sedation so it may be harder to communicate the "no" and have it understood as an absolute NO. What should happen is that the surgeon would be called; both the anesthesiologist and surgeon would ask why, hear the patient, and go from there. Again, the surgeon will likely be ticked off (mostly for wasted time) and likely would refuse to do the surgery if the patient changed his or her mind later. It may not sound like a fair response, but it's reality.

But let's use a third example. Let's say I'm having elective surgery. The nurse comes into my room to start an IV and give pre-sedation. I say NO, and make it clear that I changed my mind. The nurse should then NOT insert the IV and NOT give the pre-sedation. She should call the doctor and surgeon. IF she said I still had to have the IV or other med, that's untrue because I've just said NO. At any time, in any medical, nursing, or dental situation I have a right to say NO. If she tries to force me, say by holding me down to insert an IV, that's a tort, a physical assault.

Now, if the doctor, nurse, or dentist was in the middle of a procedure they may be unable to stop at that moment. They may need to finish THAT procedure (nothing more). Some examples might be: a physician who already inserted a needle for a spinal tap; a nurse who has a Foley urinary catheter half-way in; a dentist who has a tooth already pulled partially out. There may be other examples, but those 3 are easy examples of situations a professional may need to finish what they started, and THEN honor the patient's right to say NO.

So patients should understand that, yes, they have a right to say NO. But that logical consequences may follow, even if the consequences appear unfair. But that if a patient has clearly said NO but a professional totally ignores that demand, it may be considered a tort, and possibly a tort of assault. Patients should try to talk to a Supervisor or Hospital Ombudsman, rather than just using "no" as a way to control what is going on.

Lastly, most charges of tort by assault are brought against nurses or nursing staff, since nurses have the most frequent hands-on interactions with patients. A patient would have to consult an attorney to find out if the action rises to the level of a true tort.

Answer 2

Assault in the context of medical treatment occurs when a patient is subjected to unwanted physical contact or harm without their consent. Informed consent is a legal and ethical requirement where a patient voluntarily agrees to a specific treatment after receiving adequate information about the benefits, risks, and alternatives. Failing to obtain informed consent before performing a medical procedure can lead to allegations of assault.