OHIO - CONSENT ISSUES

March 27, 2008

Ohio state laws and regulations that affect your medical practice

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

Informed consent will be considered valid and effective if it fulfills the following requirements:

(A) The consent sets forth in general terms the nature and purpose of the procedure or procedures, and what the procedures are expected to accomplish, together with the reasonably known risks, and, except in emergency situations, sets forth the names of the physicians who shall perform the intended surgical procedures;

(B) The person making the consent acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures has been answered in a satisfactory manner.

(C) The consent is signed by the patient for whom the procedure is to be performed, or, if the patient for any reason including, but not limited to, competence, infancy, or the fact that, at the time that consent is needed, the patient is under the influence of alcohol, hallucinogens or drugs, or lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patients in such circumstances.

Ohio Rev. Code Ann. § 2317.54 (2006)

2. What are the requirements for parental notification in the treatment of minors?

(A) Mental Health Treatment:

Upon the request of a minor fourteen years of age or older, a mental health professional may provide outpatient mental health services, excluding the use of medication, without the consent or knowledge of the minor's parent or guardian.

Ohio Rev. Code Ann. §5122.04

The treating professional shall not disclose the minor’s treatment to the minor’s parent or guardian unless there is a compelling need for disclosure based on a substantial probability of harm to the minor or others and the minor is informed that the provider plans to inform the parent or guardian. Id.

Further, any care provided must not exceed six session or thirty days of services, whichever occurs sooner. After these six sessions or thirty days, the professional must terminate services or, with the minor’s consent, obtain the parent or guardian’s consent to continue treatment.

(B) Treatment of Communicable and Infectious Diseases:

A minor may consent to the diagnosis or treatment of any venereal disease without the consent of his or her parent, or guardian.

Ohio Rev. Code Ann. §3709.241

(C) Rape and Sexual Assault

A minor who is a victim of a sexual offense may consent to an examination without the consent of the parent, parents, or guardian. However, the hospital must give written notice to the parent, parents, or guardian that such an examination has taken place.

Ohio Rev. Code Ann. §2907.29

(D) Drug or Alcohol Abuse

A physician may provide diagnosis or treatment to a minor for any condition reasonably believed to be caused by drug or alcohol use. Such treatment is proper without the consent of the minor’s parent or guardian.

Ohio Rev. Code Ann. §3719.012

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

Ohio has no emancipation law. In Ohio, generally, a person is not able to enter into a legal contract or give legal consent until he or she is 18 years of age.

Ohio Rev. Code Ann. §3109.01

Unless otherwise provided by law, minors may achieve independence from their parent, and therefore make their own choices in two ways: (1) getting married, or (2) enlisting in the army. However, in the event the minor is divorced or discharged from the military prior to the age of 18, custody of the minor reverts back to his or her parent or guardian.

4. Consent Requirements for HIV Testing

An HIV test may only be performed if informed consent is obtained prior to administering the test. Consent may be oral or in writing. For a patient’s consent to be proper, the physician must provide the patient with the following oral or written information:

(A) Explanation of test procedures, including the purpose and limitations of the test;

(B) The meaning of the test results;

(C) Explanation that the test is voluntary and may be anonymous;

(D) Explanation that the patient may withdraw his or her consent anytime before leaving the premises if tested on an outpatient basis or within one hour of the blood draw if tested as an inpatient;

(E) Explanation of the behaviors which pose a risk for HIV transmission;

A minor may consent to an HIV test without a parent or guardian’s consent.

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

Updated 2008