Medical Consent is Legally Required


Dear Mr. Premack: When I was in the hospital last month, I became very ill. For a few days, I was unconscious. My wife had some difficulty with the doctors in that she wanted them to stop some medications they were giving me. They refused to follow my wife's instructions. Why would the hospital refuse to follow my family's instructions when it comes to my medical care? --H.V.


"Every human being of adult years and sound mind has a right to determine what shall be done with his own body" -- Justice Benjamin Cardozo, 1914.

The hospital and doctor were trying to honor the legal concept so well stated by Justice Cardozo. You have the right to make your own medical decisions. Conversely, only someone who is legally authorized can make medical decisions that determine what happens to your body.


When the patient has become incompetent, who makes medical decisions? The widely held belief that spouses may give consent for surgery or other medical care for each other is false. In Texas, family members must obtain legal authority before they can provide consent. There is a default law called the Consent to Medical Treatment Act that allows certain people, including the spouse, to make medical decisions - but only when the patient is in facility (not at home).


Unfortunately, not all families are loving and supportive like yours. Health care providers want to avoid medical malpractice claims. They are wary of acting without obtaining proper consent from the patient. If they provide medical services without first obtaining proper consent, they may be charged with negligence or even battery (unlawful physical contact).


Two situations do not require prior consent. First, if the patient is unable to communicate and his life is threatened by injury or illness, the law allows medical care to be provided without prior consent. Second, medical care without fully informed consent is allowed if the doctor says the benefits of therapy would be reduced if the therapy was explained in detail.


If the patient is unable to give personal consent, the medical caregiver might insist on a legal guardianship (which is expensive). Once approved by a court, the guardian can consent to medical treatment. If you do not pre-plan, then guardianship may be the only alternative.


Your pre-planning alternatives are:


1) Appoint an agent (like your wife) with a proper Medical Power of Attorney. Under Texas law, your wife would then have legal authority to make medical decisions for you without court intervention.


2) Prepare a Directive to Physicians, which tells caregivers not to use machines to keep you alive if you have a terminal condition, there is no hope of recovery, and you have lost the ability to speak for yourself.


3) Sign an Out of Hospital DNR, ask the doctor to put a DNR on your chart in the hopsital.


Providing advance instructions in this way can avoid court appointed guardianship and insure control of your uninterrupted medical care.


Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.


Column published on January 8, 1993