Consent is an important concept in law and medicine. In this article, we’ll define the term “consent” and explain how it relates to nursing home abuse. 

Key Takeaways

  • Consent is a voluntary and willful agreement to another person’s suggestion
  • To legally consent, a person must possess the sufficient mental capacity
  • Informed consent is a central concept in medical ethics referring to the fact that all patients have the right to receive all relevant information about a procedure and ask questions before agreeing to or refusing it
  • Consent is often an important issue in nursing home abuse cases
  • The ability or lack thereof of adults with dementia to consent to sexual acts is a grey area

What Is Consent?

Consent is a voluntary agreement to the proposition of another person.

In law, consent must be voluntary and willful and the consenting person must possess the sufficient mental capacity.

In healthcare, consent applies to the concept of informed consent, which is considered fundamental to medical ethics. Informed consent requires a healthcare professional to explain a medical treatment to a patient before the patient agrees to it. The patient is free to ask questions and may either accept or deny the treatment. 

The concept behind informed consent is that patients have a fundamental human right to receive the relevant information and ask any questions they may have about treatments that have been recommended to them so that they can make well-considered decisions about their own care. No patient should be forced to undergo a treatment that they do not understand or have not consented to. 

Requirements for Informed Consent

As part of informed consent, physicians must:

  • Assess the patient’s ability to understand medical information and the implications of treatments in order to make a voluntary, independent decision
  • Present relevant information sensitively and accurately in the way the patient prefers to receive medical information. This includes information about:
    • The diagnosis
    • The nature and purpose of recommended interventions
    • The risks, burdens, and benefits of all options, including forgoing treatment
  • Document the informed consent conversation and the patient’s decision in the medical record. Written consent should be included in the record.

If a patient is not able to make decisions and they do not have a medical power of attorney available, physicians may initiate treatment without informed consent. If this happens, the physician must inform the patient (or their MPOA) as early as possible of what is going on and obtain consent for ongoing treatment. 

Consent and Nursing Home Abuse

Consent is an important issue in many claims of nursing home abuse, a type of mistreatment of nursing home patients occurring within the facility. 

Informed consent applies within nursing homes exactly in the same way that it does outside of them. Giving a patient treatment without their informed consent is illegal and may be considered nursing home abuse. 

Another example is sexual abuse in nursing homes, which is intricately tied up in issues of consent. While consensual sex between nursing home residents is not problematic, the question does arise of whether or not a nursing home patient with cognitive impairment, a common issue among older adults, is legally able to consent to sex. 

There are no clear laws about how or when a person with dementia can consent to sex, making this a grey area. However, there is no denying that sexual abuse does happen in nursing homes and that this is an issue loved ones of nursing home patients should be aware of. 

If you or a loved one have been victims of nursing home abuse, you are encouraged to contact the relevant authorities immediately. It is also important to speak to an experienced nursing home abuse attorney who will be able to help you determine if you may have a legal case for compensation for your losses.

Featured Nursing Home Abuse & Neglect Lawyers

Neustrom & Associates

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Law Offices of Francis J. Discipio

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Palermo Law Group

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Theory Law APC

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