by Kim Stanger, Holland & Hart LLP

I am frequently asked how an Idaho health care provider may determine whether a person is competent to consent to their own healthcare.  Idaho Code § 39-4503 establishes the general standard for medical consents:

Persons who may consent to their own care. Any person who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure is competent to consent thereto on his or her own behalf. Any health care provider may provide such health care and services in reliance upon such a consent if the consenting person appears to the health care provider securing the consent to possess such requisite comprehension at the time of giving the consent.

(Emphasis added).  If the health care provider believes that an adult patient currently lacks the requisite comprehension, the provider should determine whether the patient executed an advance directive or otherwise conveyed his or her wishes while competent.  (See I.C. § 39-4509).  If there is no such prior direction from the patient or if the patient is an unemancipated minor, the healthcare provider should generally obtain consent from one of the persons identified in Idaho Code § 39-4504(1), i.e., in decreasing order of priority:  a court-appointed guardian; person with durable power of attorney for healthcare; spouse; adult child; parent; person identified in delegation of parental authority; other appropriate relative; or other person who is responsible for the patient’s care.  With limited statutory exceptions, the general rule is that unemancipated minors probably lack capacity to consent to their own health care.  (See I.C. § 39-4504(1)).  Idaho Code § 39-4504(3) generally protects providers who, in good faith, obtain consent from a person who appears to have the requisite authority to give consent.

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For questions regarding this update, please contact:
Kim C. Stanger
Holland & Hart, 800 W Main Street, Suite 1750, Boise, ID 83702
email: kcstanger@hollandhart.com, phone: 208-383-3913

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