Public Health Law Map - Beta 5 - Medical and Public Health Law Site

electromagnetically, but for the near future, the storage problems for recordings are a
major impediment to their use. For this reason, recordings should be used only when
the medical procedure or the patient poses particular problems. Unusual treatments
include heart or liver transplants, experimental heroic measures such as artificial
hearts, or refusal of lifesaving treatment by salvageable young people. Problem
patients include minors undergoing nontherapeutic procedures (such as kidney
donors), involuntary patients such as prisoners, patients with transient mental
disabilities, and others for whom their state of mind at the time may become a
significant issue.
When the person is illiterate but speaks and understands English, consent is usually
documented with a witness. Ideally, this should be an impartial witness. The problem
with an impartial witness is finding one. A family member may remember only what
the patient remembers, whereas a nurse will be seen as an interested party. Clergy, a
volunteer from a service agency, or another person not clearly identified with either
the physician or the patient is the best choice. The witness must be present at the
discussion with the patient and must make some independent record of his or her
observations. This independent record may be simply initialing sections of the
consent form or a note that certifies that the patient was asked a given question and
made the appropriate reply.
H. Proxy Consent
Proxy consent is the process by which people with the legal right to consent to medical
treatment for themselves or for a minor or a ward delegate that right to another person.
There are three fundamental constraints on this delegation:
1. The person making the delegation must have the right to consent.
2. The person must be legally and medically competent to delegate the right to consent.
3. The right to consent must be delegated to a legally and medically competent adult.
There are two types of proxy consent for adults. The first, the power of attorney to
consent to medical care, is usually used by patients who want medical care but are
concerned about who will consent if they are rendered temporarily incompetent by the
medical care. A power of attorney to consent to medical care delegates the right to
consent to a specific person. The second type is the living will.
1. Power of Attorney To Consent to Medical Care
The basic vehicle for an adult to delegate his or her right to consent to medical care is
the power of attorney to consent to medical care. In the simplest case, the person
delegates all medical decision-making power to another competent adult, for a fixed
period of time or an indefinite period. A competent patient may always revoke a
power of attorney to consent to medical care.
Few states have laws forbidding the use of a power of attorney to delegate the right
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