UTMB HANDBOOK OF OPERATING PROCEDURES

Section 9 Clinical Policies Subject 9.3 Patients’ Rights Policy 9.3.3 Telephone Consent for Treatment/Procedures

11/01/95 - Originated 12/21/07 - Reviewed w/ changes - Reviewed w/o changes Legal - Author

Telephone Consent for Treatment/Procedures

Definitions

Incapacitated: Lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits, risks, complications and reasonable alternatives to any proposed treatment. Minor is defined as an individual under the age of 18 and has not been legally emancipated by a court and is • not legally or previously married; • not serving in the armed forces; • not presently an offender in the Texas Department of Criminal Justice or other adult correctional facility; or, • not at least 16 years old and living away from home and managing their own financial affairs.

Policy

If a decision for treatment must be made on behalf of an incapacitated adult or a minor patient immediately, and written consent cannot be obtained, the following guidelines shall be used to obtain informed consent by telephone. Telephone consent may be used as a “last resort” measure when facsimile of the consent form (together with fax of the consenting party's driver's license) is not possible. Although this document delineates the mechanism for obtaining telephone consent, it does not endorse the concept of telephone consent as a routine practice.

Person(s) Authorized to Consent

Adult Patients Persons authorized to give telephone consent for treatment on behalf of incapacitated adult patients are the same as those authorized to give written consent, in order of priority: • Patient's spouse • An adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker • A majority of the patient’s reasonably available adult children • The patient’s parents • The individual clearly identified to act for the patient by

Person(s) Authorized to Consent (cont'd)

the patient before the patient became incapacitated • The patient’s nearest living relative, or • A member of the clergy Minors A minor is defined as an individual • under the age of 18 (and has not been legally emancipated by a court) • not legally married or previously married • not serving in the armed forces • not at least 16 years old and living away from home and managing his/her own financial affairs Persons authorized to give telephone consent for treatment or procedures for patients categorized as minors are the same as those authorized to give written consent, in order of priority: - parent, guardian, or managing conservator - a grandparent - an adult brother or sister - an adult aunt or uncle of the child - an educational institution in which the minor is enrolled that has written authorization to consent from the person having the legal power to consent - any adult who has care and control of the minor and has written authorization to consent from the parent or other person having the power to consent - any court having jurisdiction of the child - any adult responsible for the care, control, and possession of a minor under the jurisdiction of a juvenile court or committed by a juvenile court to the care of an agency of the state or county - a peace officer who has lawfully taken custody of a minor, if the peace officer has reasonable grounds to believe the minor is in need of immediate medical treatment - The Texas Youth Commission if the minor has been committed to it, if the person having the power to consent has been contacted and if actual notice to the contrary has not been given.

Procedure

When the family member/guardian cannot be present to sign a consent form, a discussion may take place by telephone regarding the nedd for the individual’s consent. After the telephone discussion regarding treatment options is concluded, a consent form must be either faxed or emailed to the individual so the individual can sign and return the consent from via fax or scanned pdf. Electronic signatures are not acceptable. A reasonable attempt should be made to locate the person authorized to give consent. This could include the use of social service and health agencies, and/or the local law enforcement agencies. - If the person(s) authorized to consent cannot be located, a referral should be made to the Social Work Department for initiation of appropriate action, which could include contact with the Children’s Protective Services and the Court(s). When telephone contact is made, the individual on the line should be asked: • to identify himself/herself and describe his/her relationship to the patient so that the authorization to give consent can be verified; • to give his/her age ( must be an emancipated minor or 18 years or older); • whether he/she understands the nature of the phone call for consent for treatment and as a consequence of their action the treatment may/may not be provided, and if not provided, what the consequence/alternative may be. - The physician should indicate to the family members/guardian that the call is being recorded (if appropriate) and that a third party is on the line. (Note: The third party should be a health care professional preferably a nurse or physician.) - The patient's problem, treatment plan, complications and risks and alternatives should be outlined. There should be a specific request for consent. Since the issue of “informed consent” is so prevalent in medicolegal issues, the following guidelines should be observed when obtaining telephone consent:

Procedure, continued

- The telephone consent should be substantively the same as the written consent -- the person giving consent should be read the same information as if they had the consent form in front of them, i.e. read the frequently occurring and serious risks of the treatment. - Explain to the family member/guardian that any consent decision should be made in accordance with what the patient wanted — not what the consent giver wants. Ask the family member/guardian if the patient had ever discussed treatment. such as the one for which consent is being requested, and if so, what treatment the patient had requested, and ask for other data which would verify when the patient made the statement - A confirming telegram or fax should be requested; indicate the exact area to which the telegram or fax should be sent. If not feasible, a telegram/fax should be sent by UTMB confirming the contents of the conversation and that consent was given. - A surrogate decision maker's consent to medical treatment that is not made in person shall be reduced in writing in the patient's medical record, signed by the UTMB staff member receiving the consent, and countersigned in the patient's medical record or on an informed consent form by the surrogate decision maker as soon as possible. If the family member/ guardian objects to the proposed treatment/ procedure, this information will also be documented.

Telephone Consent for Infants Born to Incarcerated Individuals

If it becomes necessary to seek consent for a medical procedure for the infant, the mother will be attempted to be contacted. If she is unable to be contacted, the following will be allowed to provide consent. - The baby’s father - A grandparent - An adult brother or sister of the child - An adult aunt or uncle of the child - A court hearing a suit affecting possession of the child An adult agency responsible for the child’s actual care by a juvenile court The above list will be followed in order of precedence, unless the mother states she does not want them to make the medical decisions. All attempts to contact mom, as well as her indications for medical consent, will be documented in the progress notes.

References

Policy 9.3.16, Refusal of Consent/Treatment Policy 9.3.17, Patient Consent - Overview and Basic Requirements Policy 9.3.18, Consent for Medical Care of a Minor Texas Government Code, Chapter 313, Consent to Medical Treatment Act