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competency to consentFrom: Julie Graves Moy (jgmoy@bga.com)Mon Jul 21 09:57:29 1997
My psychiatrist husband (director of a state psychiatric hospital) reminds me that only the court can determine competency in the U.S. Physicians have no legal right to do so. Patients are presumed competent unless an interested party (usually the family, sometimes law enforcement, less often the hospital or physician) petitions the court and a judge rules the patient is not competent. Any time a physician or hospital staff performs any procedure on any patient with the patient's consent (or the parent or guardian's consent in the case of a minor or incompetent adult), battery has been committed. Battery is a tort, but is an intentional tort not covered by most malpractice policies. It does not require financial damages as a medical malpractice (negligence) tort does. So, I'd be careful about doing anything without consent, even if you think the patient needs it, and I don't use blanket consents to treatment. There's not a lot of money in battery lawsuits for attorneys, but some are noticing that since the malpractice policy doesn't cover it, physicians are more likely to settle quickly, so there's potentially less work for the attorney. I guess my health law and patient's rights classes at the school of public health impressed me. Julie Graves Moy, MD, MPH Austin, Texas
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