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.
