Informed Consent (cont)
Make sure policies exist to guide the process of seeking informed consent from specific populations.
In order to provide informed consent, patients should be able to weigh the risks and benefits of different treatment and evidence collection options. It is always important for examiners to assess patients’ ability and legal capacity to provide
informed consent.1 Providers should be aware of jurisdictional laws governing the ability of specific populations to provide consent (e.g. minors, individuals with cognitive disabilities, etc.).
In addition, facilities should have internal policies based on applicable jurisdictional statutes governing consent for treatment of vulnerable adult patients. The medical provider will generally need to assess whether the patient has the cognitive capacity to give consent for the examination, and, if not, the provider should follow these internal policies and jurisdictional statutes. Policies should include procedures to determine whether or not patients are their own guardians; if there is a guardian, to determine the extent of the guardianship; to obtain consent from a guardian if needed; and what to do if the guardian is not available or is suspected of abuse or neglect. Exam facilities should also have policies in place to address consent for treatment in cases in which patients are unconscious, intoxicated, or under the influence of alcohol or drugs, and are therefore temporarily incompetent to give consent.
In cases of adolescent patients, jurisdictional statutes governing consent and access to the exam should be followed. For instance, a state statute may allow minors to receive care for STIs and pregnancy, but not a medical forensic examination without parental or guardian consent. In some jurisdictions, a minor may consent to the examination but not keep the results private from a parent or legal guardian. Exceptions to parental consent requirements also exist when the parent or guardian is the suspected offender or where the parent or guardian can’t be found and the collection of evidence needs to be done quickly. In such cases, the law generally specifies who may give consent in lieu of the parent or guardian, such as a police officer, a representative from the jurisdiction’s children’s services department, or judge.2
It should be clarified whether policies and statutes regarding consent for medical evaluation and treatment for the above populations encompass consent for the forensic component of the exam. If not, additional guidance from the jurisdiction is needed to develop the appropriate policies. Also, jurisdictional statutes regarding mandatory reporting to law enforcement or protective services in cases of vulnerable adult and minor sexual assault victims must be observed.
Examiners should develop policies and procedures for providing sexual assault care to the unconscious
patient. Such care should respect the autonomy of the individual and be consistent with jurisdictional interpretations of emergency exceptions to informed consent. Policies should ideally be approved by hospital ethics committees. Similarly, examiners should have policies for patients that present with altered mental status, which could be from alcohol or drug intoxication or for other reasons. At a minimum, if serious problems are ruled out, the patient will likely need to be observed until consent and cooperation can be obtained which will delay the start of the examination.
In all cases, the medical forensic examination should never be done against the will of patients. Responders should not touch patients or otherwise perform exam procedures without their permission.
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1 Drawn partially from L. Ledray, SANE Development and Operation Guide, 2000, p.82. http://www.ojp.usdoj.gov/ovc/publications/infores/sane/saneguide.pdf.
2 Drawn partially from L. Ledray, SANE Development and Operation Guide, 2000, p. 97. http://www.ojp.usdoj.gov/ovc/publications/infores/sane/saneguide.pdf.