Pay close attention to your state's requirements for informed consent in medical practice--especially if you are doing a lot of teleconsults.
This point was stressed by attorney Jacques Simon, Esq. at Holistic Primary Care’s 7th annual Heal Thy Practice conference.
Informed consent it is an area of growing regulation and oversight by state medical boards as well as insurance carriers. Some states have specific requirements outlining what should be included in physicians’ informed consent paperwork, while other states do not. It is very important to know the rules wherever you practice.
With regard to telemedicine, Simon told Heal Thy Practice attendees that states vary widely in terms of their regulations and requirements for verbal and/or written informed consent.
The American Telemedicine Association notes that although most states do not necessitate patient informed consent before a telemedicine encounter, sixteen states and Washington, D.C. do have informed consent requirements for physicians doing remote consults. As of May 2015, the states of Alabama, Indiana, Oklahoma, Texas, and Washington require written acknowledgement from the patient, and Rhode Island’s medical board calls for informed consent when using e-mails and text-based communications.
Simon, an attorney who specializes in medicolegal issues pertaining to holistic, functional and integrative medicine, advises learning the requirements set forth by your medical board(s), and carefully adhering to them. You need to create informed consent protocols that are specifically tailored in accordance with state laws.
In general, Simon recommended the use of a single master form for all informed consents, with additional procedure-specific forms for any added therapies.
It may seem tedious, but it is a very good idea to obtain separate consents for each procedure or treatment performed, especially if they’re for different reasons or different conditions. Copies of all initial and any subsequent consent forms should be kept in patients’ medical files.
Simon further encouraged holistic practitioners to be as explicit as possible in the language of their informed consent paperwork. In addition to explaining exactly what a treatment or procedure entails and why it’s being recommended, you need to clearly state the potential risks, benefits, and any uncertainties that apply. Consent forms should also include a note that patients have the option to seek medical care elsewhere.
Consider asking your patients to update and re-sign their consent forms as often as every six months, with notes in the patients' charts documenting these updates. In all cases, you need to carefully monitor and document all treatment responses--positive and negative.
In a final note of caution, Simon advised the Heal Thy Practice audience to take note of any third parties, including family members or outside physicians, who join patients for office visits.
Speaking to anyone other than the patient is a violation of state and federal privacy laws, so a clinician may only legally share a patient's health information with family members or loved ones if he or she has obtained explicitly-stated permission from the patient to do so.
Don't Assume Consent to Share
Many physicians wrongly assume that they can speak to a patient's spouse about the patient's condition because she gave verbal permission to disclose. However, even in the case of married partners, you are technically not permitted to share a patient’s medical information without expressed written consent to do so.
A couple of additional areas to watch out for:
- Patients bringing other clinicians into their office visits: This scenario is a “red flag,” carrying the risk that the external practitioner could file a complaint if he or she disagreed with your decisions.
- Divorce dynamics involving a child: Children of parents who are divorced or in the middle of divorce proceedings can sometimes become the center of messy disputes, when the parents disagree over a child’s treatment plan. From a medicolegal viewpoint, this can be a dangerous minefield for practitioners. Simon urges clinicians to be cautious when providing care for families in which this is the situation.
While informed consent was previously thought to be necessary only for life-threatening procedures, it is now “needed for all facets of alternative medicine,” Simon states. It is definitely on the minds of many state medical boards. In addition to being good standard healthcare practice, obtaining informed consent provides practitioners with a critical defense against professional negligence and other claims.
Informed consent was just one of many thorny medicolegal matters that Simon covered during his session at Heal Thy Practice. Video and audio recordings of this talk and all of the HTP 2015 sessions on HPC's Holistic Education Exchange website.