ILLINOIS - CONSENT ISSUES

1. What is informed consent and when should it be obtained?

Informed consent is a legal standard whereby a patient gives his or her consent to receive treatment based upon information provided to the patient about the facts and implications of a proposed treatment. To give consent, the patient must be competent, meaning he or she must, in most cases, be 18 years of age, and be free from any condition or mental disease or defect which might impair the patient’s judgment.

Informed consent should be obtained from a patient prior to any exam, treatment or surgical procedure. To be complete, informed consent must relay to the patient:

(a) The nature of the procedure;

(b) Any potential risks or side effects of treatment, taking into account those risks important to the individual patient as well as a reasonable person;

(c) Any potential benefits of treatment; and

(d) Any alternative forms of treatment available.

2. Should a physician have a standard written form to fulfill all informed consent requirements?

While a standard informed consent form may be used, it is recommended that practitioners draft informed consents specific to the services rendered. In all circumstances, however, patients should be informed of their conditions, possible risks, treatment options, and alternatives. Any conversations addressing these issues should be clearly documented within the patient’s medical record.

3. What are the requirements for parental consent in the case of the treatment of minors?

In general, the treatment of minor patients requires parental consent. However, consent to performance of a medical or surgical procedure may be given by minors who are married, pregnant, or parents. Such minors are deemed to have the same rights, including right to confidentiality, as people 18 years of age and older.

410 ILCS 210/1

(a) Emergency Circumstances:

The consent of a minor’s parent or legal guardian is not required when a physician renders emergency treatment to the minor so long as, in the physician’s opinion, it is infeasible to obtain consent without adversely affecting the minor’s health.

410 ILCS 210/3

(b) Drug and Alcohol Abuse or Venereal Disease:

A minor 12 years of age or older who (a) may have come into contact with a sexually transmitted disease (STD), (b) may be an alcoholic or drug addict, or (c) has a family member who abuses drugs or alcohol, may consent to receive medical care or counseling related to the diagnosis or treatment of an STD, drug or alcohol abuse, or the effects of drug or alcohol abuse by a member of the minor’s family. The consent of the minor shall be valid and binding as if the minor achieved majority.

Any physician who treats a minor patient who has come into contact with a sexually transmitted disease may, but is not obligated to inform the parent, parents, or guardian of the minor’s treatment. In contrast, any physician who provides counseling or treatment to a minor who abuses drugs or alcohol or who has a family member who abuses drugs or alcohol may not inform the minor’s parents or guardian about the minor’s condition without the minors consent unless such reporting is determined to be necessary to protect the minor’s safety.

410 ILCS 210/4-5

(c) Minors who are Parents:

Any parent who is also a minor may consent to the medical or surgical treatment of his or her child. Under the law, a parent who is a minor has the same legal capacity to act as a person of legal age.

410 ILCS 210/2

(d) Sexual Assault Victims:

Where a minor is the victim of sexual assault or abuse, a physician may provide medical care or counseling related to the diagnosis or treatment of any disease or injury arising from such offense without the consent of the minor's parent or legal guardian.

410 ILCS 210/3

(e) Birth Control:

Any physician licensed in Illinois may provide birth control services and information to any minor who: (1) is married, (2) is pregnant, (3) is a parent, (4) has the consent of a parent or legal guardian, or (5) is referred for birth control services by a physician, clergyman or planned parenthood agency. A physician may also provide birth control services to a minor where the failure to provide such services would create a “serious health hazard.”

325 ILCS 10/1

(f) Testing for HIV:

The law does not require a physician to notify a minor’s parent or legal guardian that the minor has tested positive for HIV. However, a physician may make a reasonable effort to notify the parent or guardian of a minor who tests positive for HIV if the physician believes notification would be in the child’s best interest and the provider has first sought unsuccessfully to persuade the minor to notify the parent or guardian.

410 ILCS 305/9(k)

(g) Mental Health Treatment:

Any minor 12 years of age or older may request and receive counseling services or psychotherapy on an outpatient basis without the consent of the minor’s parent or guardian. Outpatient counseling or psychotherapy provided to a minor under the age of 17 shall be limited to no more than 5 sessions, lasting no more than 45 minutes, until the consent of the minor’s parent or guardian is obtained. The minor’s parents or guardian shall not be informed about the therapy without the minor’s consent unless the facility director believes such disclosure is necessary. The minor be told before the facility director informs the minor’s parents or guardian.

405 ILCS 5/3-501

4. For the purposes of obtaining informed consent, when is a minor considered emancipated?

In Illinois, the Emancipation of Minors Act (the Act) provides a means by which a minor may obtain the legal status of an emancipated person with the power to enter into legal contracts. Only those minors between the ages of 16 and 18 are eligible for emancipation under the Act. Emancipation is granted through court procedures and the rights of the emancipated minor are established by court order. Once this court order is granted, an emancipated minor with the power to make his or her own health care decisions or with the power to enter into contracts, may give informed consent as if the minor had reached majority.

5. What obligations does a physician have if a patient refuses to consent to treatment on religious grounds?

Illinois courts have consistently recognized the right of an individual to refuse medical treatment, even where the refusal may result in the patient’s death.

In re Baby Boy Doe, 632 N.E.2d 326, 330 (Ill. App. Ct. 1994); In re Estate of Longeway, 549 N.E.2d 292, 297 (Ill. App. Ct. 1989); In re Estate of Greenspan, 558 N.E.2d 1194 (1990)

Thus, as long as a patient is of sound mind and has made his or her wishes known to the healthcare provider, the patient’s beliefs must be honored.

Cohen v. Smith, 648 N.E. 2d 329 (Ill. App. Ct. 1995).

In addition, Illinois has The Right of Conscience Act which states that it is the policy of the State of Illinois to “respect and protect the right of conscience of all persons who refuse to obtain, receive or accept. . . the delivery of medical services and medical care.”

745 ILCS 70/2

As such, where a patient refuses to give informed consent on the basis of religious or moral beliefs, the patient’s request should be honored.

Copyright © Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

Updated 2008