Skip navigation

Informed Consent and Patient Confidentiality

Informed consent and patient confidentiality are legal concepts that are usually defined by state laws. For legal purposes, it is important to obtain consent for health care. The health care provider should be the one who obtains informed consent. The victim advocate can play an important role in assisting the patient during the consent process, but should not be delegated the role of obtaining informed consent. In order to provide patient-centered care to the sexual assault patient, each patient should have all steps explained in a developmentally appropriate manner and have an opportunity to cooperate or decline any or all parts of the examination. Even patients who do not have the legal ability to consent should give their assent to a medical forensic examination. It is also important to recognize that informed consent is a process—it is not just completed when the patient signs a formal consent form. Informed consent should be an ongoing process throughout the examination. The patient should be aware that they are able to decline any procedure or any part of the examination at any time during the examination. 

While informed consent and patient confidentiality are essential parts of the provision of all health care, in the sexual assault setting there are three special considerations: 

  1. Is the patient able to give informed consent, and is the patient entitled to confidential care?
  2. Does the patient understand the role of each member of the team and whether or not the information disclosed to a specific team member is protected from further disclosure?
  3. How does trauma impact the ability of the patient to understand the long-term implications of consent given at the time of the examination?

Guardianship

Being granted legal guardianship is the legal process by which a person assumes the position of decisionmaker for someone who is deemed by the state to be unable to make some decisions. Understanding guardianship is essential to any program committed to serving people with disabilities. Terminology for guardians differs from state to state and may include conservators and curators. In general, guardianship can be imposed over a person, their estate or finances, or both. Each level of guardianship has unique implications for a person’s ability to consent to and receive services from a SANE program independently, from a limited decisionmaking ability to a broader authority. It is common for staff in human and medical services to assume that people with disabilities who have guardians cannot make any decisions on their own behalf. This creates barriers for several reasons. The patient may not feel comfortable disclosing sexual violence to his or her guardian, the guardian may be the offender, or the staff may wait for the guardian’s consent for delivering crisis intervention, which delays services. Moreover, when people with disabilities have a guardian who has full authority, there are often legal exceptions to requiring a guardian’s consent in matters involving crisis intervention and health and safety. Having a guardianship policy allows programs to delineate their states’ guardianship laws and the different levels of guardianship that staff should explore while also providing expectations about service provision when a guardian is present.

What types of informed consent are required for a medical forensic examination?

  1. Consent to perform an examination and collect forensic evidence. 
  2. Consent to provide treatment for STI and pregnancy prophylaxis.
  3. Consent to take photographs. 
  4. Written authorization to release information and other items, such as a sexual assault evidence kit and clothing, to other members of the Sexual Assault Response Team (SART).

Under what circumstances does a patient have a legal right, under state, federal, or tribal law, to provide consent for health care?

  1. Typically, patients who are 18 years or older and can legally consent for all aspects of care. 
  2. Adolescent patients may be able to consent to specific types of health care:
     
    1. Reproductive health care
    2. Sexually transmitted disease treatment
    3. Mental health treatment
    4. Alcohol or substance abuse treatment
       
  3. Children usually require the consent of their parents in order to obtain a medical forensic examination. In some states, the consent of the parent may not be required if the parent is suspected of being the perpetrator of the assault. In that situation, the state may take custody of the child and give consent for the examination. In any case, a patient should not be restrained for the examination. With an uncooperative pediatric patient, performing an exam under sedation should be considered if significant acute injuries are suspected. For patients too frightened to proceed with the examination, consider postponing the exam.
  4. Patients with cognitive impairment related to age or disability are legally able to consent unless they have been assigned a legal guardian. Some elderly patients may have a person who is designated to make health care decisions for them. This usually is documented with a Medical Power of Attorney. For most patients, the Medical Power of Attorney does not become effective unless the patient is incapacitated and unable to consent. 
  5. Patients who are impaired with drugs and alcohol may be able to consent if they are able to respond appropriately to questions and physically cooperate throughout the examination. 
  6. An unconscious patient cannot consent, but a SANE program should have a protocol in place that addresses when to wait until the person regains consciousness to collect evidence; or a protocol on how to obtain consent from another person (family member or court order from a judge); or a protocol to obtain evidence to be held by the program until consent can be legally obtained. 
  7. It is important to understand the difference between mental capacity and mental competency. Whether or not a person is competent is usually a legal determination made by a judge. Capacity is the ability for the patient to understand what is happening in order to provide consent or assent to the examination process. There is no objective test for determining whether a patient is capable of providing consent or not. In most situations, capacity is assumed if a patient can respond appropriately to questions and follow directions.

Under what circumstances is information shared by a patient with a health care provider required to be kept confidential?

  1. Typically, information shared by an adult to a health care provider is considered to be confidential unless the health care provider receives permission to share that information. If the person receiving the information is not another health care provider, permission or authorization to share information should be in writing and signed by the patient.
     
  2. State, tribal, and federal mandatory reporting laws create exceptions to the requirement to maintain patient confidentiality. These mandatory reporting laws include:
    1. Child abuse reporting 
    2. Elder/vulnerable adult abuse reporting
    3. Infectious disease reporting 
    4. Injury reporting 
    5. Duty to warn if a patient is threatening themselves or others
       
  3. Adolescents may be able to obtain confidential care under specific circumstances:
    1. Reproductive health care, contraception
    2. Sexually transmitted disease treatments
    3. Mental health treatment
    4. Alcohol or substance abuse treatment 
       
  4. Disclosures to parents or a guardian may be limited if one is a suspected perpetrator of the assault or abuse, or if disclosure would endanger the child. 
     
  5. Certain types of care can have higher levels of privacy protection:
    1. Mental health treatment 
    2. HIV/AIDS treatment

When are disclosures or statements made by a patient confidential?

Part of obtaining informed consent is notifying the patient what information will be shared with other members of the team and what information will be kept confidential. SANEs should inform their patients that the information collected as part of the SANE examination will be shared with law enforcement. The nurse should obtain written authorization to make those disclosures. If a patient does not authorize release, the nurse should maintain patient confidentiality unless a mandatory reporting law requires the release of information. If a mandatory reporting law applies, only the information specified in the law can be released without the consent of the patient. 

In many states, community-based rape crisis advocates can have a confidential relationship with the patient. This means that if a patient speaks privately with a rape crisis advocate and does not want the information disclosed to anyone else, the advocate cannot disclose that information. Frequently, there is information that a patient may be fearful about disclosing. For example, it is not unusual for a patient to be afraid to disclose information about consensual illegal substance use that occurred prior to an assault. When given an opportunity to talk about this with a rape crisis advocate who can have a confidential conversation with the patient, the victim can then be reassured that they will not be charged for using an illegal substance, if that is the policy of the law enforcement agency. When providing care to elderly patients or patients with cognitive disabilities, confidentiality with a rape crisis advocate may be limited if mandatory reporting laws require disclosure of abuse or neglect. It is important for SANE programs to know in advance what laws apply to different circumstances in order to be able to explain to the patient what information can be kept confidential.

Privileged communication is defined as a special relationship between two people that allows for confidentiality. The law recognizes that there are certain relationships where communication should be considered private or privileged. These typically are those between husband and wife, clergy and communicant, doctor and patient, and attorney and client. Again, mandatory reporting laws may supersede these relationships.

Military

Confidential communications are oral, written, or electronic communications of personally identifiable information concerning a sexual assault victim and the sexual assault incident provided by the victim to the sexual assault response coordinator, victim advocate, or health care (medical and mental health) personnel in a Restricted report. This confidential communication includes the victim's Sexual Assault Forensic Exam kit and its information.75   

How does trauma impact a patient's ability to give consent?

This section contains a list of the types of consent that are needed before performing a medical forensic examination. It is important to realize that because of the changes that occur in the brain as a result of experiencing trauma, patients are not always capable of making decisions that require complex judgment. It is common for patients not to remember the specific details of what took place during the examination. When creating a consent process, it is important to balance the need to provide care to the patient with the need to provide information to the criminal justice system. The reality is that consent for some things can take place at a later time. 

Patients should never be asked if they want to "press charges" prior to evidence collection, this is typically not a decision the patient will ultimately make. As part of the reporting options discussed in Section 7.2, the patient should consent to whether or not they want to report the crime; be interviewed by law enforcement; and have a medical forensic exam with evidence collection. Only after an investigation has been completed, and the prosecutor decides there is enough evidence to file charges, should a victim be asked if they will cooperate with the prosecution of the suspect. IACP training Key #571. The nurse examiner would not ask that question. 

While it is important to get photographs of genital and non-genital injury at the time of the examination, the patient should not have to make a decision about releasing the photographs to law enforcement or prosecutors until they are needed to prepare a case for trial. Genital photographs usually require a medical expert for proper interpretation, and law enforcement and prosecutors can use body diagrams to understand the extent of injuries seen during an examination. Limiting consent to what is needed to obtain and preserve evidence allows the patient to have some control over a process that can seem extremely overwhelming immediately after an assault.