Informed consent, scholastic athletes, minors and related topics

Informed Consent

A bedrock principle of medical practice is a patient should be treated only after granting informed consent. There are only a few exceptions (emergencies, mental health, drug overdose) when the patient is incapacitated or incapable.

Informed consent is sometimes more complicated than it may sound.

 Diligent compliance especially applies to minors and there is a significant body of law and best practices around these issues (informed consent tends to be based in state law, providers and school officials should be informed accordingly). In general, parents or guardians (“surrogates”) make medical decisions for minors, although older minors are sometimes subject to different state statutory rules.

Informed consent is not just about protecting the patient, it is also about protecting the physician and the organization.

The focus here is scholastic athletes, both in K-12 and college settings.

Implied Consent / Overt Consent

When an adult goes to the doctor there is often implied consent – the patient made an appointment, arrived at the appointed time, presented an I.D., signed a HIPAA form, followed the nurses’ instructions, let the physician do an examination and allowed testing.  Clearly the adult was consenting to this examination.

The consent, however, was not open ended. If the physician recommends surgery or an invasive procedure additional consent would be needed, preferably in writing.

When young athletes join middle school, high school and college sports teams there is at least an implied consent to athletic training and health monitoring, and often some sort of “permission to play”  and/or physical form involved which may constitute overt consent. There may even be a full-fledged consent to treatment form.

Permission to join the team by a parent or a college student deciding to join a team would seem to provide consent for basic athletic training, monitoring of health condition and emergent care.

The consent, however expressed, is not open ended. Especially in the case of minor.

Legal risk attaches to the provider and school entity, outcome risk attaches to the patient. All parties need to be aware of the risk and the general legal rules.

Providers must stay within the “scope of practice” attached to their license or certification by state law. School officials should be clear on which clinician can and should provide which services.

“Informed”

The definition of informed is part art and part law.  There is no absolute checklist.

The definition depends on context and the abilities of the patient or surrogate.

There is no requirement for “fully informed,” anyone who has tried to read a pharmacy drug insert will understand that. The patient will not be able to understand what is happening at the same level as the clinician.

Items  the patient must understand are  the 1) current or potential diagnosis, 2) the potential benefits of testing and/or treatment, 3) the potential risks (especially with surgery) and 4) and any viable alternatives (trying physical therapy before trying surgery).

In emergent situations there is no requirement for consent, but notice to parents or surrogates should be as quick as possible, and at some point the surrogate will be in a position to give or deny consent. Withholding information from parents should get a coach or clinician fired (“we won’t tell your parents, they might make you sit out!”)

The Team Physician

High school and college teams will normally have a team physician (or designated clinician) on the sidelines during the games.

It would seem reasonable that joining a team provides implied consent to be examined on the field by the team physician, as injuries would be considered potentially emergent.

When the team physician sees the athlete off the field in a non-emergent situation, rules of informed consent would seem to kick in.

Clubs and Camps and Community Sports

Not all sports activity is provided for enrolled students of a school or college.

Sports such as gymnastics are often club based, or the athlete may be trained and compete in club and school settings (and national gymnastics is currently immersed in a scandal of immense proportions). Youth baseball, flag football, swimming and other sport are offered through various community organization.

Many middle school and high school athletes attend summer camps, either sponsored by universities or by prominent coaching figures.

Again there are both implied consent and overt consent issues and notice to parent issues, and failure by the sponsor or clinician might trigger unwelcome liabilities.

How to protect a child away from home? Investigate the camp especially the regular chaperone system and the health care chaperone system.

Parents and Legal Surrogates

What is a parent to do?

Ask a lot of questions. And the higher the level, the rougher the sport, the higher the likelihood of significant injury, the more questions should be asked.

The horrific scandal in national gymnastics centered at Michigan State University was based on lack of informed consent and lack of parental information (and this  is not to blame the victims or parents).

Ask a lot of questions. And do not proceed without satisfactory answers.

Can an Athlete, Parent or Surrogate Say No to a Clinician?

Informed consent requires consent, and consent ultimately comes from the athlete, parent or the surrogate.

If a clinician seems to be rushing an athlete back to the field, or rushing the athlete into surgery, it is ok to say no. If a second opinion is required, it is ok to say no.

A parent or surrogate can also say no to a coach or athletic trainer who wants to put a child back on the field, perhaps too quickly.

It is ok to say NO!

Many sports injuries involve orthopaedic surgery, something I know a bit about. There are orthopaedists who fix knees, and orthos who specialize in fixing knees. I would pick the latter, who will probably not be found in a small town hospital, but in a major metro hospital.

Rub It in the Dirt and Play Ball

There is an ethos in sport of playing through pain and injury.

There is a difference in playing through dings and nicks treated at bump clinics versus serious  injuries needing more sophisticated medical treatment, which often mean missing games or meets.

The NFL and its’ alumni are now reaping a bitter harvest of this play-with-pain ethos.

Coaches should make the right decision, but parents should never count on that happening, even at the college level. Coaches live with pressures parents do not.

Responsible Officials

Like all executives and supervisors, school officials and other sports program sponsors are responsible for the design and operation of an appropriate risk management program. The program should be designed to protect the athletes and to protect the entity, using practices that accomplish both, but the athlete first.

It seems the answer to almost every question these days is “consult your lawyer.” A lawyer well versed in education law is a necessary member of the management team.

Any Good News?

Every year millions of young people have safe, healthy experiences with sports.

And remember….

Adults are supposed to protect young people. We all have responsibilities.