Consent, Refusal, and Waivers in Patient-Centered Dysphagia Care: Using Law, Ethics, and Evidence to Guide Clinical Practice Purpose When patients refuse medical or rehabilitation procedures, waivers of liability have been used to bar future lawsuits. The purpose of this tutorial is to review the myriad issues surrounding consent, refusal, and waivers. The larger goal is to invigorate clinical practice by providing clinicians with knowledge of ethics and ... Tutorial
Tutorial  |   November 01, 2016
Consent, Refusal, and Waivers in Patient-Centered Dysphagia Care: Using Law, Ethics, and Evidence to Guide Clinical Practice
 
Author Affiliations & Notes
  • Jennifer Horner
    Communication Sciences and Disorders, School of Rehabilitation and Communication Sciences, College of Health Sciences and Professions, Ohio University, Athens
  • Maria Modayil
    Individual Interdisciplinary Program, Graduate College, Ohio University, Athens
  • Laura Roche Chapman
    Communication Sciences and Disorders, School of Rehabilitation and Communication Sciences, College of Health Sciences and Professions, Ohio University, Athens
  • An Dinh
    Communication Sciences and Disorders, School of Rehabilitation and Communication Sciences, College of Health Sciences and Professions, Ohio University, Athens
  • Disclosure: The authors have declared that no competing interests existed at the time of publication.
    Disclosure: The authors have declared that no competing interests existed at the time of publication. ×
  • Correspondence to Jennifer Horner: hornerj@ohio.edu
  • Editor: Krista Wilkinson
    Editor: Krista Wilkinson×
  • Associate Editor: Katherine Verdolini Abbott
    Associate Editor: Katherine Verdolini Abbott×
Article Information
Swallowing, Dysphagia & Feeding Disorders / Professional Issues & Training / Regulatory, Legislative & Advocacy / Tutorial
Tutorial   |   November 01, 2016
Consent, Refusal, and Waivers in Patient-Centered Dysphagia Care: Using Law, Ethics, and Evidence to Guide Clinical Practice
American Journal of Speech-Language Pathology, November 2016, Vol. 25, 453-469. doi:10.1044/2016_AJSLP-15-0041
History: Received April 24, 2015 , Revised October 21, 2015 , Accepted July 25, 2016
 
American Journal of Speech-Language Pathology, November 2016, Vol. 25, 453-469. doi:10.1044/2016_AJSLP-15-0041
History: Received April 24, 2015; Revised October 21, 2015; Accepted July 25, 2016

Purpose When patients refuse medical or rehabilitation procedures, waivers of liability have been used to bar future lawsuits. The purpose of this tutorial is to review the myriad issues surrounding consent, refusal, and waivers. The larger goal is to invigorate clinical practice by providing clinicians with knowledge of ethics and law. This tutorial is for educational purposes only and does not constitute legal advice.

Method The authors use a hypothetical case of a “noncompliant” individual under the care of an interdisciplinary neurorehabilitation team to illuminate the ethical and legal features of the patient–practitioner relationship; the elements of clinical decision-making capacity; the duty of disclosure and the right of informed consent or informed refusal; and the relationship among noncompliance, defensive practices, and iatrogenic harm. We explore the legal question of whether waivers of liability in the medical context are enforceable or unenforceable as a matter of public policy.

Conclusions Speech-language pathologists, among other health care providers, have fiduciary and other ethical and legal obligations to patients. Because waivers try to shift liability for substandard care from health care providers to patients, courts usually find waivers of liability in the medical context unenforceable as a matter of public policy.

Acknowledgment
We thank Fatimah Hani Hassan and David Hajjar, graduate students at Ohio University, for critically reading an earlier version of this tutorial.
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