The Patient Refusal

Published September 12, 2020.

If a patient can consent, then they can also refuse. Refusal and consent are really the same matter from a legal perspective. The main risk of a refusal is that the patient could succumb to their conditions without the benefits an ambulance could have afforded. In other words, there could be a damage or death resulting in the patients decision to refuse transport. The patient could die and the family could sue the EMS personnel or ambulance service for abandonment if all the condition of consent and refusal are not satisfied.

There are rules that EMS agencies should have about patient refusal situations. Nobody should deny the patient who is competent to make such a decision. If care is refused the patient needs to know why the care is needed, if possible suggest alternatives. The rules typically involve contacting a supervisor who could arrive to witness the refusal and talk to the patient. Some agencies actually enlist the support of medical control to speak with the patient. Such measures ensure that the an objective third party arrived to the scene to ensure the conditions of the refusal were met (namely, what the EMS crew told the patient). The conditions for refusal are the same as the conditions for consent:

The patient is normally able to make decision based on age, mental status, etc.
The patient is currently alert and oriented.
The patient was given an explanation.
The patient understood the explanation.

The process is pretty simple. The ambulance crew explains the risks of not being treated or transported, the patient indicates they understand, and finally signs a refusal. The EMS crew goes back into service and documents the call. Documenting a patient refusal would be very similar to documenting any other type of call, the only difference being able to explain the conditions of refusal/consent in the narrative.

What if the conditions are not exactly satisfied because the ambulance crew told the patient that they didn’t need to go to the hospital and then had them sign a refusal? What would an attorney say to such duplicity (saying one thing and doing something else)?

O.C.G.A. § 31-9-2
GEORGIA CODE
Copyright 2006 by The State of Georgia
All rights reserved.
⁵O.C.G.A. § 31-9-2

GEORGIA CODE
Copyright 2006 by The State of Georgia
All rights reserved.

*** Current through the 2006 Regular Session ***

TITLE 31.  HEALTH
CHAPTER 9.  CONSENT FOR SURGICAL OR MEDICAL TREATMENT

O.C.G.A. § 31-9-2 (2006)

§ 31-9-2.  Persons authorized to consent to surgical or medical treatment

   (a) In addition to such other persons as may be authorized and empowered, any one of the following persons is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed, or directed by a duly licensed physician:

   (1) Any adult, for himself, whether by living will or otherwise;

   (1.1) Any person authorized to give such consent for the adult under a health care agency complying with Chapter 36 of Title 31, the “Durable Power of Attorney for Health Care Act”;

   (2) In the absence or unavailability of a living spouse, any parent, whether an adult or a minor, for his minor child;

   (3) Any married person, whether an adult or a minor, for himself and for his spouse;

   (4) Any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his care; and any guardian, for his ward;

   (5) Any female, regardless of age or marital status, for herself when given in connection with pregnancy, or the prevention thereof, or childbirth;

   (6) Upon the inability of any adult to consent for himself and in the absence of any person to consent under paragraphs (2) through (5) of this subsection, the following persons in the following order of priority:

      (A) Any adult child for his parents;

      (B) Any parent for his adult child;

      (C) Any adult for his brother or sister; or

      (D) Any grandparent for his grandchild.

(b) Any person authorized and empowered to consent under subsection (a) of this Code section shall, after being informed of the provisions of this Code section, act in good faith to consent to surgical or medical treatment or procedures which the patient would have wanted had the patient understood the circumstances under which such treatment or procedures are provided.

(c) For purposes of this Code section, “inability of any adult to consent for himself” shall mean a determination in the medical record by a licensed physician after the physician has personally examined the adult that the adult “lacks sufficient understanding or capacity to make significant responsible decisions” regarding his medical treatment or the ability to communicate by any means such decisions.

Muddy Waters Abound In Patient Refusals

The general public has no idea what types of things result in a 911 call. The range of complaints is truly staggering. Many complaints do not in fact require transport. A typical ambulance service could expect 30% of their calls to not actually require transport. Despite this fact, most ambulance services provide only a couple of ways to resolve a call once patient contact is made, transport or refusal. The 30% of the calls that wouldn’t require transport, often times are resolved with the signature of a refusal.

All refusals should encourage to patient call 911 if the problem persists and should be witnessed (preferably by a supervisor, but a police officer or family member will do). Just because a patient does not wish to be transported to the hospital doesn’t mean the EMS crew can’t treat the patient. Sometimes the patient just wants a nebulized breathing treatment or something but doesn’t want to go to the hospital. Just because someone doesn’t want to be transported doesn’t mean EMS should assess or treat them.