Informed Consent and Capacity

A.  Primary Care Clinics and Informed Consent

In California, primary care clinics providing abortion services shall provide pre-abortion and post-abortion information and education sessions.[1]  These sessions should include, but are not limited to, information about how the abortion is performed, possible risks and complications, options or alternatives to abortion, post-procedure medical services, and family planning information and education.[2]

The pre-abortion information and education sessions shall be documented in each patient’s medical record, which shall be signed and dated by the person providing the instruction and by the patient.[3]

 

B.  Consent to Abortion and Public Benefits

1.   Public Benefits: An individual’s consent, or refusal to consent, to an abortion shall not be a condition precedent to the receipt of any public benefits.[4]

2.   Privileges or Immunities:  An individual’s consent, or refusal to consent, to an abortion shall not be grounds for the loss of any privileges or immunities to which the person would otherwise be entitled.[5]

 

C.  Informed Consent, Sterilization, and Post-Abortion Waiting Period

1.   Inability to Consent/Consent Not Valid:  Informed consent for sterilization may not be obtained while the patient is in labor, seeking to obtain or obtaining an abortion, or within 24 hours postpartum or post-abortion.[6]

2.   30 Day Wait Period:  With certain exceptions, at least 30 days (but not more than 180 days) must have passed between the date on the consent form and the date the sterilization is performed.[7]

 

D.  Minors and Consent for Abortion Services

Under California law, minors possess the same rights to access abortion care as adult women.[8]  Minors may obtain medical care related to the prevention or treatment of pregnancy, including abortion care, without parental consent or notification, provided that the clinician is satisfied that the minor is capable of informed consent.[9]

 

E.  Adults, Capacity and Abortion

1.   Conservatorships and Abortion

a.    Authority of Conservator:  As a general rule, a conservator may consent to medical treatment to the extent authorized by the court during the conservatorship hearing.[10]

b.    Patient Consent or Court Order Required Before Surgery:   Except in emergency cases in which the conservatee faces loss of life or serious bodily injury, no surgery shall be performed upon the conservatee without the conservatee’s prior consent or a court order authorizing the surgery.[11]

c.    Limited Conservatorships:  The conservatee of a limited conservatorship shall not be presumed to lack capacity and shall retain all legal and civil rights except those which have been specifically granted to the limited conservator by court order.  This means that a patient subject to a limited conservatorship retains the ability to consent to or refuse to consent to abortion where the conservator’s authority to consent was not within the scope of rights granted to the conservator and the patient is capable of informed consent.[12]

d.    Limited Conservatorships and Court Order Authorizing Medical Treatment:  If a conservatee  requires medical treatment and the conservator has not been specifically authorized by the court to require the conservatee to receive medical treatment, the conservator may petition the court for an order authorizing that treatment.[13]  The conservatee, if he or she chooses to contest the request for a court order, may petition the court for a hearing which shall be held prior to granting the order.[14]

2.   Authority of Surrogates and Agents

a.    Limits on Authority of Surrogate or Agent:  An individual designated as a surrogate or agent in an advanced health care directive or a power of attorney for health care is not authorized to consent to an abortion on behalf of a patient.[15]

b.    Court Petition Based on Known Wishes or Best Interests of Patient Lacking Capacity:  While an agent or surrogate is not authorized to consent to an abortion on behalf of an patient who lacks capacity to make health care decisions, where the wishes of the patient are known or where an abortion may be in the best interests of the patient, filing a petition and seeking direction from the court may be prudent.[16]

3.   Court Petition to Protect Privacy Interests Where There Is no Appointed Conservator:  There is no clear statutory or case law addressing the right to abortion or to continue the pregnancy where a patient lacks capacity to make health care decisions for herself and there is no appointed conservator (see discussion of conservatorships).  However, the California Supreme Court has held that the right to exercise choice over matters of procreation is protected under the United States and California Constitutions and may not be denied to an individual on the basis of limited capacity or disability.[17]  While not specifically addressed by case law or statute, filing a petition and seeking direction from the court may be prudent under these circumstances.

4.   Emergency Medical Treatment:  A conservator may consent to medical treatment in emergency cases.[18]  Similarly, limits on the authority of agents and surrogates to consent to abortion would not bar abortion in a medical emergency.[19]

 


[1]   Cal. Code Regs. tit. 22, §§ 75040(a), 75041(a)(4) (2011).  See Cal. Health & Safety Code §§1200, 1204 for the definition of “primary care clinics.”

[2]   Cal. Code Regs. tit. 22, § 75040(a).

[3]   Id. § 75040(c).

[4]   Cal. Health & Safety Code § 123425 (2011).

[5]   Id.

[6]   Cal. Code Regs. tit. 22, § 51305.1-51305.4 (2011) (regulations governing Health Care Services provided though Medi-Cal); § 70707.3 (regulations governing Acute Care Hospitals).  A minor may not be sterilized, other than in a medical emergency.  Cal. Fam. Code § 6925 (2011).

[7]  Cal. Code Regs. tit. 22 § 51305.4(c)(4); 70707.1(a)(4) (2011).

[8]  See Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997).

[9]  Id.; see also Cal. Fam. Code § 6925 (providing minor may consent to treatment and preventions of pregnancy, except sterilization), § 6920-6929 (providing list of medical services to which a minor may consent).

[10]   Cal. Prob. Code § 1801 (2011).

[11]   Cal. Wel. & Inst. Code § 5358(b) (2011).

[12]   Cal. Prob. Code § 1801 (2011).

[13]   Cal. Wel. & Inst. Code § 5358.2 (2011).

[14]   Id.

[15]   Cal. Prob. Code § 4652 (2011).

[16]   The intent of the Health Care Decisions Act is to require the surrogate to make decisions in accordance with the patient’s individual health instructions, if any, and other wishes of the patient to the extent known to the surrogate.  Otherwise, the surrogate shall make the decision in accordance with the best interests of the patient.  In determining the patient’s best interest, the surrogate shall consider the patient’s personal values to the extent known to the surrogate.  Cal. Prob. Code § 4684, 4714 (2011).  Section 4652 of the California Probate Code specifically precludes a surrogate or agent from consenting to certain specified types of treatment, including abortion; however, it may be appropriate to petition the court to authorize an abortion. See Section E.3.

[17]   Denial of an abortion where it is sought by a pregnant patient and/or her designee may infringe on a woman’s state and federal constitutional guarantees of privacy.   In Conservatorship of Valerie N., the California Supreme Court held that the right to exercise choice over matters of procreation is protected under the United States and California Constitutions and may not be denied to an individual on the basis of limited capacity or disability.  40 Cal. 3d 143 (1985) (holding statute barring sterilization of conservatee under guardianship-conservator law was unconstitutional as it denied developmentally disabled persons rights which are accorded to other persons in violation of state and federal constitutional guarantees of privacy).  See also Foy v. Greenblott, Cal. App. 3d 1 (Ct. App. 1983) (holding woman lacking capacity to make health care decisions has right to privacy relating to childbearing and noting that the woman’s conservator could have petitioned the court to authorize an abortion).

[18]   Cal. Prob. Code § 2354; Cal. Welf. & Inst. Code § 5358.2.

[19]   Cal. Prob. Code § 4651 (Health Care Decisions Act does not apply to the law governing health care in an emergency); see also Maxon v. Super. Ct., 135 Cal. App. 3d 626, 627 (Ct. App. 1982) (holding that a statutory prohibition against sterilization did not prevent the superior court from authorizing a lifesaving surgical operation).