The intent of this position statement is to recognize the evolving process of informed consent and the complexity of the legal and moral issues surrounding the role of the registered professional nurse in the process of healthcare decision making. The position also seeks to clarify the registered professional nurse’s role in protecting the legal and moral rights of patients.
Case law: The collection of reported cases that form the body of law within a given jurisdiction (Black’s Law Dictionary, 1999, p. 207).
Common law: The body of law derived from judicial decisions rather than from statutes or constitutions (Black’s Law Dictionary, 1999, p. 271).
Informed Consent: 1. A person’s agreement to allow something to happen made with full knowledge of the risks involved and the alternatives. 2. A patient’s knowing choice about treatment or a procedure, made after a physician or other healthcare provider discloses whatever information a reasonably prudent provider in the medical community would provide to a patient regarding the risks involved in the proposed treatment (Black’s Law Dictionary, 1999, p. 300).
Precedent: 2. A decided case that furnishes a basis for determining later cases involving similar facts or issues (Black’s Law Dictionary, 1999, p. 1195).
The New York State Nurses Association acknowledges that informed consent seeks to establish the rights of the individual through self-determination. Inherent in the employee status of the registered professional nurse are multiple instances of role conflict that arise through the occasionally conflicting responsibilities to the patient, the family, the agency, care-providing colleagues, society, and to the advancement of knowledge.
The Nurses Association believes that the registered professional nurse’s role and responsibility in informed consent is to:
Advances in technology and treatment, while bringing with it the promise of greater efficacy in healing, has the potential for more iatrogenic complications and negative outcomes. The ability to understand and make informed decisions regarding health care can become arduous task for patients and healthcare proxy agents. The Federal Patient Self-Determination Act of 1991 and the New York State Health Care Proxy Act of 1990 were enacted to provide patients with the opportunity to designate an agent to act as their health care proxy in the event that they were no longer capable of making decisions in their own behalf. Patients, healthcare proxy agents and healthcare providers can face numerous challenges in New York State (NYS) in regards to consent to or refusal of treatment.
Case law in NYS has concluded:
The ability of an individual in New York to communicate his or her feelings regarding medical care is based on the common-law right of an individual to make decisions regarding his or her own body. This right is not limited to the ability to consent to treatment and an adult with capacity is generally entitled to refuse treatment or to have existing treatment terminated. [Schloendorff v. Society of New York Hospital , 211 NY 125 (1914); Matter of Eichner, 52 NY2d 363 (1981); see also New York Public Health Law Section 2803-c (3)(e)]. This right has been held to extend to mentally ill persons [Rivers v. Katz, 67 NY2d 485 (1986)] although there must then be a judicial determination of the patient's capacity to make decisions (Clark, 2010).
Patients (or their agents) often make difficult choices that have significant consequences for their health status. To be able to successfully make these decisions, the patient or agent(s) must be informed. This involves more than simply getting a patient’s signature on a written consent form. “The heart of informed consent is not the consent document, but rather the discussions between the physician and patient” (Fiesta, 1999, p.6).
Informed consent is grounded in both the ethical and legal foundations of nursing practice; the American Nurses Association’s (ANA) Code for Nurses with Interpretive Statements provides the ethical framework for decision making in nursing (2001). The Code’s guidelines for practice reflect inherent professional nursing beliefs about the nature of individuals, nursing health and society. Although the Code does not specifically address the issue of informed consent, the statements within the Code reinforce a set of values, and moral principles.
In Provision One in The Guide for the Code of Ethics for Nurses: Interpretation and Application, Taylor (2008) reviews:
The drafters of the Code of Ethics for Nurses have continued to identify respect for persons as a core ethical principle including respect for autonomy in this principle…and continue to hold nurses to a high standard of compassion and respect for all-especially those most vulnerable (p. 3).
The first provision of the ANA Code of Ethics for Nurses with Interpretive statements (2001) focuses on that inherent respect for all individuals by nurses, and states:
Self-determination, also known as autonomy, is the philosophical basis for informed consent in health care. Patients have the moral and legal right to determine what will be done with their own person; to be given accurate, complete and understandable information in a manner that facilitates an informed judgment; to be assisted with weighing the benefits, burdens, and available options in their treatment, including the choice of no treatment; to accept, refuse, or terminate treatment without deceit, undue influence, duress, coercion, or penalty; and to be given necessary support throughout the decision-making and treatment process (p. 8).
Taylor (2008) notes the first provision mandates nurses understand the patient’s right of self-determination; not as eliminating the need for the ongoing presence of the nurse. “True self determination involves the nurse being perceived by the patient as a therapeutic rather than as a toxic presence” (p. 6).
Recipients and providers of nursing services are viewed as individuals and groups who possess basic rights and responsibilities, and whose values and circumstances command respect and human dignity at all times.
Besides having multiple ethical obligations, nurses are accountable to know and follow local, State and Federal laws, accreditation and reimbursement rules and guidelines, scope and standards as well as facility or agency policy. Some examples include the New York City Statute; NYS Public Health law; Department of Health, Title 10 regulations for Article 28 facilities; Nurse Practice Act, as contained in Article 139 of Title VIII of the Education Law of New York State; and the Rules of the New York State Board of Regents relating to definitions of Unprofessional Conduct (Section 29.1, Regents Rules on Unprofessional Conduct, (b)(1)); Codes of Federal Requirements; Joint Commission; Center for Medicare and Medicaid Services and the American Nurses Association.
Facility /agency policy may be more stringent than other law, rules or regulations, and may be based on other factors including litigation or court precedent.
Annas (2006) states:
Patients have rights, even when they are in the hospital. Such rights, most centrally, include the right to information (often termed informed consent or informed choice), the right to refuse any treatment, the right to privacy and confidentiality, the right to emergency treatment, and the right to be treated with dignity. A patient's right to safety could be derived from the fiduciary nature of the doctor-patient relationship. But physicians do not control all possible risks of injury in the hospital setting. Therefore, it is more appropriate to focus on the hospital and to define the scope of the right to safety as a reflection of corporate responsibility: the obligation of a hospital to maintain a safe environment for patients and for their health care providers (Electronic version, 2006, p.2).
The need to obtain a patient’s consent before rendering diagnostic testing or treatment has long been recognized by case law. Lack of proper consent, except in cases of emergency or other well defined areas, could lead to charges of battery, even in cases when the care rendered meets standards of practice. “In today’s legal and ethical climate, patient involvement is so important that treating a patient without adequately informing her about the treatment is considered negligence and treating her without consent is considered battery” (Dunn, 1999, p.42).
The New York State Nurses Association recommends that:
Note: The use of the term “patient” anywhere in this document is intended to be generic and refers to the recipient of nursing care.
Approved by the Board of Directors on June 22, 1979; January 20, 1993; September 15, 2004; September 15, 2010.Reviewed/revised by the Councils on Ethical Practice and Human Rights on August 27, 2004.
Reviewed/revised by the Council on Ethics & Human Rights on March 12, 2010.
Annas, G. J. (2006) Sounding board. The patient’s right to safety: Improving the quality of care
through litigation against hospitals. New England Journal of Medicine, 354(19), 2063-2066.American Nurses Association. (2001). Code of ethics for nurses with interpretive statements.
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from CINAHL Plus with Full Text database.Fiesta, J. (1999) Informed consent: What health care professionals need to know, part 2.Nursing
management, 30(7), 6-7. Retrieved from CINAHL Plus with Full Text database.Gould's Consolidated Laws of New York: (2004), Chapter 6 - Civil Rights Law, Article 7 –
Miscellaneous rights, Section 79-I - Discrimination against person who refuses to perform
certain acts prohibited.Official Compilation Codes, Rules and Regulations of the State of New York. Title 8 (Vol. A)
Education, Part 29 Unprofessional Conduct, Section 29.1 General Provisions.Official Compilation Codes, Rules and Regulations of the State of New York. Title 10 (Vol. C),
Health, Section 405.25 Request for a consent to an anatomical gift.Official Compilation Codes, Rules and Regulations of the State of New York. Title 10 (Vol. C),
Health, Section 405.7, Patients Rights.Official Compilation Codes, Rules and Regulations of the State of New York. Title 10 (Vol. C)
Health, Section 415.3 Residents' rights.Taylor, C. R. (2008) Provision One. In Guide to Code of Ethics for Nurses: Interpretation and
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For more information on nursing practice, contact NYSNA's Education, Practice and Research Program at 518.782.9400, ext. 282 or by e-mail.