[Editor's note: Science & Sensibility is beginning a new series of posts surrounding legal issues pertaining to maternity care. Casey Magan is an attorney-at-law in Bozeman, MT, with a special interest in women's health issues.]

Question: The issue of "informed consent" comes up a lot in discussions about perinatal health care. From a legal perspective, what is the true definition of "informed consent" and how have you seen it applied in actuality for clients you have represented in the past?

Answer: You took the classes, read the books, did the research, and made the personal choice that natural childbirth was best for you and your baby. And now, either by intent or by circumstance, you are in the hospital for the delivery of your baby. And, as well-prepared and studied as you thought you had been, events seem to start getting out of hand:

1. As you walk the halls to advance labor, a nurse firmly escorts you back to your room, explaining that hospital policy requires you to stay within the labor and delivery department-if not your room or bed
2. When you ask for a glass of water, you are instead poked with an IV;
3. A doctor comes into your room and forcefully lobbies that he be able to use Pitocin to induce labor.And so there is a face-off of your rights to self-determination versus your physician's desires, and the hospital's rights to enforce its policies. How does informed consent affect these examples?

What is "informed consent"?
Informed consent is a legal and ethical requirement founded on the notion of personal autonomy and self-determination. In its simplest form, it means that, in non-emergency situations, it is your right as the patient to decide what treatment to agree to, or refuse, based upon your physician's disclosure of all material facts relating to the proposed treatment or procedure.

A failure to provide appropriate informed consent can be "medical battery," an unlawful touching that takes away a patient's right to make her own health care decisions.The duty to obtain informed consent is the physician's, but hospitals must have in place a process that ensures that patients are given the information needed to make an informed decision. Liability may be imposed for medical negligence if:

" There was no informed consent, or consent was given for a substantially different procedure than that performed, and
" There is a causal connection between the physician's failure to obtain informed consent, and the patient's injury.

This connection exists only if the patient would have refused treatment if she had been told about the risk that resulted in her injury. For example, in the case of a non-emergent c-section, this could mean the doctors failure to adequately advise the patient about the serious risks of adhesions and future surgery, including hysterectomy.

Although consent can be implied in some circumstances (emergencies, for instance), it is almost always demonstrated by a piece of paper "a consent form - signed by the patient (usually before the procedure, and sometimes right before it); witnessed (usually by a hospital employee, such as a nurse); and placed in the patient's permanent medical record.

From the patient's perspective, though, informed consent is more than just a signature on a piece of paper, and should be viewed by all concerned parties as a process by which the patient is made aware of her condition, and is able to discuss all available options to achieve her -and her baby's - best outcome.

Does informed consent matter in the three preceding examples?
Informed consent provides an easy analysis in just one of the three examples - that of the physician's desire to use Pitocin. Because, under the doctrine of informed consent, if you are capable of giving consent, and do not agree to a certain treatment or procedure, the doctor may not administer it, no matter how much he or she would like to.This notion is mirrored by The American College of Obstetricians and Gynecologists (ACOG) Committee on Ethics, which states that, in providing consent, providers of maternity care must have an understanding of the woman's situation and use language that she is able to understand. A woman must be given adequate and accurate information regarding her condition and available treatment options - including no treatment at all. Her consent must be given freely, intentionally and voluntarily without coercion or pressure from the provider, facility or others, and she must have the freedom to choose between alternatives, even if that choice goes against the provider's recommendation. (See, e.g., ACOG Committee on Ethics 2004, p.11).

Next time, in Informed Consent Part 2, - we will look at the two examples involving the hospital, to see how and to what extent informed consent affects your rights. And we will attempt to answer the question, "They can't really kick you out of the hospital for not following hospital policy, can they?"

Do you have a generalizable legal question pertaining to maternity care you'd like addressed in this column at a future date? If so, submit your request/ideas here.

Posted by: Casey Magan
Waddell & Magan, PC www.bozemanlawyer.com

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