Consent to Treatment

Consent to treatment refers to the process of a client giving permission to a health care provider to provide treatment-related services; this chapter describes the general rules and requirements for obtaining client consent. In some situations, consent is provided by a legally authorized representative (e.g., legal guardian, agent, or surrogate).

When clients give consent, it's important that they are fully aware of what they are consenting to. It is your responsibility as the provider to inform your clients about the treatment process, any foreseeable risks, the expected outcomes, the potential costs and benefits, and alternative treatment procedures.

Unless the situation is an emergency, consent to treatment should always be in place before a client is treated. Additionally, it is the provider's responsibility to document the client's consent if the course of treatment changes or if the treatment plan is reviewed and updated.

Other terms used for consent to treatment include:

• Consent to treat.
• Consent.
• Permission to treat.
• Informed consent.
• Authorization for treatment.

Every client should be given an opportunity to consent to treatment unless a person is severely mentally ill, gravely disabled, or at risk of causing harm to self or others. In these cases, an individual may be committed to treatment via a legal procedure called Involuntary Commitment. For more information, see Chapter E-6: Involuntary Commitment of a Mentally Ill Person. Clients also need to be informed that their Consent to Treatment is time-limited and will need to be updated when it expires.

Talk clients through Informed Consent forms.

• You may need to translate or explain the forms using the client's first language. If you do not speak the client's language, consult with your supervisor about using a translation service. You will need a Release of Information to use a translator.
• Talk to the client about who can review their records.
• Clarify the purpose of the forms, explain what they mean, and answer any questions.
• Take the time to make sure the client understands the scope of services they are consenting to.
• Explain the timeframe covered by the consent.
• Some clients will consent to some types of assessment or treatment but not to others. If a client does not agree to everything described in the form, document what the client specifically agrees to and review any items they have not agreed to with your supervisor.

Document the consent process.

• Always make sure the client has given consent to treatment before providing services.
  Note: It is important to be familiar with the requirements for mandatory reporting as it relates to the topic of consent and confidentiality. If you believe that you are in an emergency situation that does not require consent (e.g., suspected child abuse or abuse of a vulnerable adult), you must report the incident within 24 hours to the appropriate authorities. You should document your report in the client's file and contact your supervisor as soon as possible.
• Follow your organization’s policies and procedures for getting consent to treatment.
• Use a form provided by your employer. The form may be named something like Informed Consent, Authorization for Treatment, or Consent to Treat.
• In the health record, you should document any time the client consents to treatment, a consent to treatment is updated, a treatment plan is updated, or the course of treatment changes.
• Document any time a client refuses to sign a consent form.
• Provide the client with a copy of the signed consent form and include the original signed document in the client record.

If you are providing services to a minor or dependent adult, determine who can provide consent to treatment. There may be more than one person who can consent. This may be based on:

• Court orders.
• Decisions made by the Office of Children’s Services (OCS).
• Arrangements made by parents and guardians.

You may need to have documentation verifying guardianship or the person designated to provide consent. Consult with your supervisor.

According to the minor consent rule , before beginning treatment for someone 17 years old or younger, you must get written permission (consent) from a parent or other adult who is legally responsible for the minor. There are four exceptions to this rule:

1. Legally emancipated minors live apart from their parents and manage their own financial affairs. Legally emancipated minors may consent to their own care.
2. Parents who are minors may give permission to provide services for their children.
3. If the minor is in an emergency situation, you may treat before getting authorization.
4. If the minor is only receiving substance use treatment, they are not required to have parental consent before they receive treatment. In many cases, there are benefits to having the parents involved in treatment; consult with your supervisor if you encounter a minor client who has been referred for substance abuse treatment.

In child custody law, there are two types of custody: “legal custody” and “physical custody." It is important to know the difference between these two types of custody.

• Legal custody is the right to make medical, academic, and other major decisions about a child. In Alaska, both biological parents have legal custody of their children by default until a court has taken action through a court order. Courts can order several types of legal custody in a custody order. For example:
  • Sole legal custody is when one parent has the sole right to make all major decisions. The other parent does not have the ability to make major decisions.
  • Joint legal custody is when both parents have the right to make major decisions. This can look different ways, so read the court order. Some examples of joint legal custody:
    • Both parents have to agree on all decisions.
    • Each parent has the right to make decisions without the other.
    • The parents should discuss major decisions together, but one parent has the final say.
• One parent having sole legal custody does not mean that the other parent cannot access the child's records. Both parents have access to the child's records unless a court order specifically restricts this access.
• Physical custody defines the number of overnights per year the minor will spend with each parent, and the court order may define the child's schedule for overnights or only state a percentage or number of overnights.
  • For example, a child could spend 50% of overnights with one parent and 50% with the other, 80% with one and 20% with the other, or 100% of overnights with one parent.
  • Even though one parent has "primary physical custody," or most of the child's overnights, this does not mean that parent has sole legal custody. Legal and physical custody are ordered on separately.
  • Even if one parent has 100% of a child's overnights, that does not mean that the other parent has lost parental rights. Only through a court order may a parent’s legal custody rights be eliminated, such as an order terminating parental rights.

Be aware of these four scenarios if a child is not under the legal custody of both biological parents:

• Adoption. Adoptive parents usually have the same authority as biological parents to make health care decisions for minors. Talk to your supervisor for guidance about tribal, cultural, or customary adoptions.
• Legal guardianship. Review the guardianship papers to see how much authority the guardian has.
• State custody through the Office of Children’s Services (OCS). Minors in state custody are usually cared for by foster parents, and foster parents cannot consent to medical treatment of a foster child. Be sure to contact OCS to verify who has the authority to make health care decisions for the minor.
• Sole custody awarded to only one parent (for example, after a divorce). Follow your organization’s policies on whether to obtain further proof of a court order that confirms sole custody.

Ask your supervisor for help interpreting and following court orders, since each case is different.

Generally, a minor’s consent to treatment for health care services is given by the parents or legal guardian. Sometimes, however, parents may authorize another adult to give consent for their children's treatment without giving up legal custody. Parents may:

• Write a signed and dated note authorizing another adult temporary custody or control over the child.
  • For example, a parent may give temporary custody to a relative or close friend while the parent is away.
  • The State of Alaska has a special form for this called a Delegation of Powers by Parent or Guardian.
• Arrange a “cultural” or “customary” adoption.
• Give another adult consent to help the child seek or receive health care.
  • For example, by signing a Power of Attorney called a Durable Power of Attorney for Health Care, a parent or guardian can give consent to another adult to make health care decisions for a minor.

In some situations, minors can consent to their own treatment; consult with your supervisor for more information.

One way parents or legal guardians can allow another person to consent to care for their children is by signing a Power of Attorney document appointing that person as an “agent” or an “attorney-in-fact." There are several types of Power of Attorney; a Durable Power of Attorney for Health Care gives the agent or attorney-in-fact the authority to make health care decisions described in the document.

If you are provided a Power of Attorney giving consent for someone other than the parents to make health care decisions for a minor client:

• Review the Power of Attorney document carefully.
• Confirm that the document is signed by the parent or someone with legal custody of the minor.
• Check how much authority the document grants the agent or attorney-in-fact regarding heath care decisions for the minor.
• Make sure the document has not expired.
• Contact your supervisor if you need help.

A legal guardian is generally someone who is legally appointed to take care of and make decisions for someone else.

• Some people use the term “guardian” to mean anyone who has authority to make decisions for a minor (such as a foster parent). But only some of these people are legal guardians, so you must determine what the legal relationship is in each case.
• Legal guardianships are usually established by court order or through a parent’s will.
• The powers of the guardian can vary. They might include decisions about housing, legal issues, medical care, and/or behavioral health services.
• Be sure to review all guardianship papers carefully to see how much authority the guardian has to make health care decisions.
• Guardians may also have the powers of a "conservator," meaning that they have authority over financial affairs.

A Guardian Ad Litem is not a legal guardian. Rather, it is someone whose job is to represent the best interests of a minor in court, usually during child abuse and custody proceedings.

The GAL is there to make sure the judge is told:

• What has happened to the minor.
• What the minor needs to be happy and safe.
• What decisions the judge can make to help the minor.

The GAL may have the right to information and records about the minor, but the GAL does not usually have the right to consent to health care for the minor. Be sure to review the court order appointing the GAL carefully to see how much information the GAL is entitled to receive. Consult with your clinical supervisor for more guidance.

The Indian Child Welfare Act (ICWA) is a federal law that protects the interests of Indian children during child placement proceedings (custody, adoption, foster care, guardianships, etc.). The law also protects the rights of Alaska Native and American Indian (AN/AI) tribes, parents, families, and “Indian custodians.”

• If you need help determining whether a child is an “Indian child” under ICWA, check with your supervisor and follow the policies of your employer.
• If an AN/AI child is a member of a tribe (or eligible for membership by the tribe), that tribe has a right to certain information and may have the power to make decisions about custody, adoption, foster care, guardianships, etc.
• In some cases, more than one tribe may be involved, and usually one tribe will be appointed as primary. Be sure to confirm which tribe is primary.
• Private, cultural, or customary adoptions are permitted by some tribes.
• In some cases, a tribal entity can temporarily appoint a family member to guardianship until family legal concerns are resolved.
• Ask your supervisor for guidance to determine what information can be shared and who has a right to make decisions for Indian children.
• The federal Bureau of Indian Affairs (BIA) publishes an updated list of the tribes every year in the Federal Register. The list includes the name, address, and telephone number of a contact person for each tribe. You can get the list on the website of the Office of the Federal Register.

The State of Alaska Senior and Disabilities Services has the Adult Protective Services (APS) Unit. APS assists adults, families, and providers in identifying services available to support individuals experiencing disabilities, seniors, and vulnerable adults.

• If you have questions about adult guardianship, you can call or email the APS.
• The APS is a resource to help adults live in a safe and healthy environment. Services provided by APS are voluntary and collaborative.