Well, hello everyone. My name is Sarah Jimenez-Valdez. I am a project manager with the International Association of Forensic Nurses. Today's webinar is titled Consent. What does it mean? This was made possible with the grant funds awarded by the Office of Victims of Crime for the SANE Program TTA Project. I do have a few housekeeping items that I'm going to cover before we do get started. First, I'll start with a brief disclaimer. The opinions, findings, and conclusions or recommendations expressed in this presentation are those of the contributors and do not necessarily represent the official position or policies of the U.S. Department of Justice. So with that said, we do encourage you all to participate in today's webinar using the Q&A feature that is available to you. And then if anything comes up for you, you can always raise your hand as well. You all are muted as part of this setup with Zoom, but if you do have something to say, you can always raise your hand and we can unmute you just as long as you raise your hand or you can throw it in the chat as well. We'll be monitoring the chat and the Q&A feature if you want to use either one of those. Lastly, I did want to mention that we do have an evaluation that will be sent out within the end of the week. If you're interested in CEs for today, you will need to complete that evaluation that we share out for this presentation. Let me make sure here. So with that, I would like to welcome your presenters for today. We do have four presenters that will be covering four topics or four overarching topics today, as you can see on the screen here. So we do have Diane Dabur, Tara Henry, Susan Chaston, and Gail Horner that will be sharing with us today. We'll go ahead and kick it off and we'll start with Diane. Thank you so much, Sarah. So I'm going to just start it off with an overview of the importance of informed consent. So in healthcare, informed consent is both a legal and ethical component of our clinical practice and patient care. And according to the Joint Commission, it is the process of communication between a clinician and a patient that results in the patient's authorization or agreement to undergo a specific medical intervention. So this definition is based on the fact that individuals have a right to make choices about what happens to their body. That makes sense, right? Why would anyone not trust us? We are healthcare providers and we're in it to do no harm and to try to help people in our practice. So why would anyone not trust us? You can go to the next slide, please. Well, let's look back on some of the reasons people may not trust us. There's the historical non-informed consensual healthcare. Let's take a look at some of these examples. When healthcare professionals conduct procedures and examinations on patients, or they really are victims at that point without their consent, these non-consented experiments were conducted on vulnerable populations and were considered a means to learn. There was little consideration given regarding the devastation caused to the individual, or for that matter, the long-term mistrust of healthcare. The abuse and assault of vulnerable populations continues today. So on the screen, you can see the forced examinations and non-anesthetized surgical experiments on enslaved people who were unable to decline. Or white practitioners disregarding historical practices of Indigenous and Black healers. Quarantining and forcing internal exams on people suspected of STIs. Sterilization of people of color and low economic status without their knowledge. And here's one that we still hear about every so often. It currently is a hymen inspection for virginity testing. The United States Public Health Service syphilis study at Tuskegee. And even the current medical students performing covert pelvic exams on patients under anesthesia. And then, of course, we can't forget Dr. Larry Nassar, who had decades of abuse on our U.S. gymnast and other athletes. So there's good reason that people could maybe not trust us, especially certain, you know, different populations and cultures. When we look at our professional guidelines for pelvic care, the Joint Commission. I'm sorry, I forgot to tell you to change the slide. Sorry, Sarah. So the Joint Commission says informed consent is an ongoing process and not just a signature on the page. And we all know that, right? That's trauma informed to explain, inform our patients and have that be an ongoing process. But it's most important that we let the patient know, too, that this is an ongoing process and that they can decline any time. The American College of Nurse Midwives advocates for the informed choice, a shared decision making and the right to self determination of the patient. The American College of Obstetrics and Gynecologists or ACA. They agree with both of the Joint Commission and the midwives, but also they want to present the medical facts and recommendations in understandable terms, including alternative treatments, risks, benefits, possible complications and potential results. So for just a quick review, let's look at the pillars of medical ethics. We have autonomy, which is the freedom of choice and bodily integrity. So the patient has the ultimate decision making, the ultimate decision making responsibility for their own treatment. And the practitioner cannot impose their bias, except when the individual is deemed unable to make their own autonomous decision. Then there's justice, that the decision process must be fair and equal for all people. Does the decision support the patient's rights? It also means that we must ensure that no one is unfairly disadvantaged when it comes to access to health care. Beneficence is the obligation to act for the benefit of the patient and prevent harm. Consider all the valid treatment options and then rate them in order of preference. And non-maleficence states that the medical practitioner has the duty to do no harm or allow harm to be caused to the patient through neglect. So if a treatment causes more harm than good, then it should not be considered, which is a little bit in contrast with beneficence, where you're listing all valid treatments, all valid options and ranking them. But you can see how the pillars, next slide please, you can see how the pillars of ethical, medical ethical decisions goes hand in hand with informed consent. The four components of informed consent is the explanation of the risks of the procedure or treatment. So for example, in our profession as forensic nurses, we would explain to the patient the time that's associated with the exam, you know, let them know that there's going to be, it's going to be three, four, five hours. Or another example would be to explain how the documentation and digital images will be stored and who will have access to them. The benefits of the care, like an example of that would be explaining to the patient the benefit of timely collection of samples from their clothing or body and also providing them information about their reporting options and allowing patient time to think about whether they would want to talk to law enforcement or not. Alternative treatments, an example of that would be to explain the jurisdictional timeframe for collection and allowing the patient to return later as an alternative to having the exam and collection done at the current time. Or explaining to the patient their option, their reporting options. And then, of course, consequences if a treatment is not performed. An example in our forensic nursing world would be explaining the timeframe for NPEP prophylaxis and discussing the risk of transmission. Next slide, please. Informed consent considerations, you need to think about the patient's literacy level. Are they able to understand what we're telling them? Are we speaking to their level of literacy and not using our big medical terms? And consider the use of the patient's preferred language with a certified medical interpreter unless there is a shared language with the healthcare provider. Making sure that other interpretative services are available for the patient. And clarify that the patient understands this information. Maybe have them repeat it back to you. And because, remember, the patients that we're seeing oftentimes are experiencing trauma brain and might have more trouble remembering what we're saying or understanding all the information. And then also document the process of consent, including the information that has been shared from the clinician to the patient. And also to reflect what the patient's questions and answers are. Next slide, please. We need to think about, too, that perceived power imbalance between the clinician and the patient. So we want to ensure that decisions are made free from any bias or coercion. So if the healthcare provider kind of weaves in their own preferences or biases in an effort to guide patients to a decision that the provider thinks is best for the patient, that is no longer consent. And it actually may border on coercion. So the patient should be free to make informed decisions without fear of ramifications from the provider. And try to equalize that perceived clinician-patient power imbalance. Things that add to that, to barriers and add to that imbalance or perceived imbalance are things such as race, sex, gender identity and expression, language, educational status, and even disabilities may further increase that power imbalance. Or the perceived power imbalance. So it's up to us to equalize that imbalance. Next slide, thank you. Indicators of the patient's choice. So the patient needs to be able to be comfortable in declining care. They need to be able to decline care without fear of any ramification or judgment by the clinician. So again, it needs to be free of coercion and any provider bias. And just as a kind of a bit of an overview too for our particular practice, we need to think about the patients that we're seeing and different, very specific different consents that we might be obtaining. So making sure that we have a trauma-informed approach. Obviously that's a standard of care for all sexual assault survivors. And it's considered the standard for all health care, especially with intimate exams. We're well aware of the prevalence of gender violence and understand that many of our patients, they might not even disclose that they have a history of assault or previous traumatic health exams. So it might be their first pelvic exam. Obviously we want to make sure they have the opportunity for education, educate them so that they will continue to have healthy visits and well visits, including pelvic exams, and make sure that we're explaining each step of the way and obtaining consent along the way. And specifically with sexual assault, patients who experience sexual assault, we want to recognize that they're feeling this loss of control and it's imperative that we provide them that opportunity to control what happens to their body during the exam process. Again, offering that ongoing consent every step of the way and maintaining a very clinical environment. And when I say that, I'm suggesting we modify our language or adapt language that's always very clinical and our touch that's very clinical so that we can avoid any parallels with sexual intimacy. And along with that consent, ACOG actually does recommend chaperones for all breast, chest, genital, and rectal exams, regardless of sex or gender. But again, patient can decline a chaperone. And the LGBT non-binary population has a higher chance of never having penetrated intercourse compared to the cisgender or cisgender heterosexual individuals. So pelvic health care may be the only time that this population may experience insertion into the genital or anus, if that's even necessary for health care. And so we want to make sure that we have increased sensitivity and understand that this can be very traumatic to the individual. And then, of course, consent for students to be included in the exams. The patient must give informed consent for students. They should be informed of the student's role, how many students there might be, what type of student this is, how many exams there might be. What types of exams the student will conduct, and will there be a preceptor there at all times? And making sure that we prioritize the patient consent over the student's learning time. So if there's questions, you can please post them in the chat, and we can address those at the end of the presentation, unless there's something that we should address now, Sarah? I mean, people can ask questions now, but there will be time at the end to address the question. Okay, that's great. So the next slide. Can you put up the next slide, Sarah? Thank you. Just resources, and then I'm going to hand it over to, I believe I'm handing it over to Tara. Yes. Thanks, Diane. Appreciate that introduction. Hello. So my section that I'm going to just give a brief overview on today is really some things for you to think about, whether it's doing sexual assault exams or intimate personal violence exams. Some considerations that you want to want to think about when it comes to consent. So, Sarah, can you, next slide. It's important, though, that you make sure that, regardless of what, you know, we talk about here today on the webinar, that you familiarize yourself with your own state and, you know, what your state statutes are. That you follow your hospital organization's policies and procedures. And make sure that your own program for forensic nursing has established policies and protocols around being able to get informed consent from your patients and what do you do when you can't get that consent. And certainly involving your risk management in those decision making. So, but some things that you can think about here, we'll go over. Next slide. So, when's the last time that any of you have read your hospital's policy and procedures for informed consent? Or for delegation of a surrogate decision maker? Because that's important for you to understand and to know what your individual hospital's policy and procedure is on that. And if your program is one that maybe is mobile or responds to multiple different hospitals or organizations. If you're serving multiple places, then you should be aware and have read and be familiar with each of those hospitals policy and procedures on informed consent and delegation of surrogate decision makers. And then for your own program, what is your policy and procedure? Or do you even have one in place for informed consent for your patient population that you're seeing? Do you have a specific policy for delegation of surrogate decision makers, or do you rely only on your hospital's policy and nothing specific for yours? Do you have a policy in place for unresponsive patients? How do you handle that? Does your clinic even respond to those patients if they are not responsive? Forensic nursing programs, some of them are standalone outpatient clinics, some of them are hospital-based. There's a variety of ways that your programs are set up. And so you have to look at your own community and what you're responding to and how you're responding. Do you have a policy or procedure in place for responding to patients who are actively suicidal or homicidal if you're outpatient clinic or in your hospital? And what kind of consent process do you have for those types of patients? Next slide. What is your relationship with your risk management? What do they know about your program that you have? What is your relationship with individuals? Do you know who your risk management contact people are? Can you just pick them up the phone and say, hey Sue, here's the issue? Or when you call them, do you have to explain who you are, what you do, try to figure out who your resource is for that specific situation that you are contacting them on? And then how often do you actually have communication with them? Is it only if there is an issue that's happening or do you have regular communications about what's happening with your program or patients that you're seeing or regular risk management kind of dialogue just as to stay in contact with them, like the meetings or what is that situation that you have? Are they involved in reviewing your protocols for your specific, your program? Do they look at any of them? If so, which ones do they look at? Risk management may not necessarily need to review every protocol that you have, but which ones may they want to look at and do you have them sign off on those ahead of time and have that discussion? And when do you consult them? Do you have some free decision-making based on the protocols that you have or do you have to contact them every time there is a situation? Is that a contact to consult them on what to do or is that to just notify them on an incident that occurred? So what is your requirements or process for consulting your risk management? And again, if you are responding to multiple hospitals, then those same questions apply for each of those places. Do each of the hospitals, do you have a relationship with their risk management? Do they know who you are, that you're coming into their hospital? Have they had an opportunity to review protocols that you may have? How often do you consult them? Those kinds of things, because each hospital that you go to, their risk management should be aware that you're there and involved in the procedures or risk management review of what your practice is going to be in that hospital and how you're going to be taking care of certain patient populations there. Next slide. So what we'll spend just the bulk of the next few minutes on is really when we're talking about informed consent, Diane went over informed consent, but to do an informed consent, you really have to have an understanding of capacity and competency, because in order to get an informed consent, the patient has to have the ability to even be able to consent. So how are you determining that? So informed consent really involves providing patients with accurate and adequate information about the risks and the benefits and the alternatives of a treatment. And it's done in a manner that is free from coercion. So it requires patients to have medical decision-making capacity. Now, capacity to make one's own decision is fundamental to the ethical principles of respect for autonomy, as Diane had already mentioned. It's also a key component of informed consent to medical treatment. So capacity differs from competence, and sometimes those terms are used interchangeably by people, but competence, whether somebody is competent to make a decision, that is a legal term, and that's determined by the court system. It's the global decision-making abilities or inability of a person. So it's essentially a legal judgment regarding whether the person has the legal right to make their own decisions, their own decisions about finances, property, wills, medical, whatever. Do they have the legal right to do so? Whereas capacity is a medical term, and that's referring to the ability to make decisions about proposed medical treatments and care, and that's determined by the treating provider, nurse, you know, nurse practitioner, physician. They're the ones that are making that determination for capacity. And in this medical context, capacity is the person's ability to utilize the information about their illness and the proposed treatments or care options that you're offering them, and make a choice that is congruent with their values and preferences. And so the main determinant of capacity is their cognition, and any condition or treatment that affects their cognition can impair or potentially impair their decision-making capacity to consent to that treatment that you're offering them or the care or the exam that you're doing for them. Next slide. So when we look at medical decision-making capacity, generally a patient's capacity is usually readily apparent, and we intuitively are assessing the capacity every time we interact with a patient. So most of the time that determination of capacity is implicit, and the majority of our patients are fully able to make decisions about their healthcare. However, when you have a situation or a patient that their capacity comes into question, that medical decision capacity then has to be explicitly determined. And so there are generally four decision-making abilities that constitute capacity, or four elements of capacity. So if you're questioning whether or not a person has the capacity to consent... Sorry, I'm getting messages on my screen where I can't see my slides. So if you're questioning the patient's ability to have capacity to consent, then you need to go through these medical decision-making elements to evaluate them and to document them in your decision whether to move forward or not. So the four elements are understanding, appreciation, reasoning, and choice. So understanding, does the patient understand the choices about their medical care or treatment that are being presented to them? Do they understand the risks and benefits of each of those choices that you're presenting to them? Can they recall the information that you provide, the risk, the benefit, and that process of that medical decision? Can they recall it? Are they able to paraphrase it back to you, what you explained to them, or tell you their understanding of what you've discussed with them? Are they able to ask questions and clarification about it? So the ability to understand is a key decisional ability. And this can be impaired with memory problems, attention span, intelligence of a person. And so those are all things that you wanna look at with are they understanding what their options are that you're giving them? And then demonstrating appreciation. Is that patient able to recognize how the situation and the medical care is relevant to them? Are they able to identify the illness and their situation, their treatment options, and the potential outcomes as it relates to them? So do they have an appreciation or the ability to apply the facts that you've given them to their own life essential, to their own medical issues that they're having? And that ability or that appreciation to apply that, those facts is really essential for making that medical decision authentic in moving forward. And this appreciation or ability to apply that to themselves is gonna be impaired by if you have like delusional or psychiatric disorders as well. Can they show reasoning? Are they able to compare options that are provided and consequences of those choices? Are they able to verbalize why they're choosing A option over B option? Again, this can be impaired by dementia, delirium, psychiatric disorders as well. And then are they able to communicate their choice? Can they tell you what their treatment choice is clearly? Are they able to articulate that and have a dialogue about that treatment choice? So those are the four elements of medical decision-making that you want to evaluate when you're questioning whether or not that person has the capacity to be able to consent and go forward with the medical forensic care that you're looking at. Next slide. So if they can't, if you've determined that the patient does not have the capacity to make a medical treatment decision, then the consent needs to be obtained from other sources. So who that surrogate decision-maker is is typically the closest relative. Now you'll have to look at your own state statutes because the priority of the relative varies by state, but in general, the typical order is the surrogate decision-maker would be the spouse followed by the adult child or parent, the adult sibling, and then maybe other relatives or close friends. And then if there are no relatives available, then you need to get a co-order to move forward with those decisions making. Now, keep in mind that emergency care without a formal consent can be done under the assumption that a reasonable person would have consented to that treatment, but not all the care that we do in a medical forensic exam is emergency care. Okay, certainly forensic sample collection, there's nothing emergent about that. It is not emergency medical care. And so without a court order or without the patient's consent or a surrogate decision-maker's consent, that is not something that you can go forward with under that emergency care kind of assumption. So when you are faced with a patient that's not able or you don't think has the capacity, you have to seek out a surrogate decision-maker. So what does your hospital policy say is the next decision-maker, the surrogate decision-maker for you to move forward with and how do you proceed? That's what you wanna look at and what your protocols are. Next slide. Now, really when we are thinking about the highest risk patient groups that we're looking at for whether they have the capacity to consent or not, we're looking at basically any illness or compromise of cognition that can be associated with reduced capacity. And this can be a temporary reduction of capacity or it can be a permanent reduction of capacity. And so the patients who really fall into those highest risk for impaired decision-making capacity are those typically with neurodegenerative disease, cognitive disabilities or impairments, psychiatric disorders, traumatic brain injuries, and then certainly those who have substance use impairment at the time. I think, Sarah, for timing wise, why don't we go ahead and skip over the case studies so we can stay in this window and just go to slide 31. Can we do that? Okay, great, thank you. So some considerations to think about for medical forensic exams. One, this is gonna vary by program and the extent of the medical care the forensic nurse is responsible for. In our program here where I'm at, we're an offsite clinic. The forensic nurse has a lot of responsibilities in caring for the patient here at our, a lot of medical care that we do at our outpatient clinic. However, we respond to four different hospital in town where patients may not be medically stable to come to our outpatient clinic. And so we need to be aware of what we can do in those hospitals and the extent of what our medical care is going to be. So think about that in your specific program. A medical forensic exam is really a combination of medical care and medical procedures and non-medical procedures. So thinking about your medical procedures those are your physical assessment, your labs, the medications, other treatments that you may be doing. And then your non-medical is those forensic sample collection for DNA or other trace type of evidence. And the medical components of your exam, they're either emergent or non-emergent. So you need to be evaluating on that case. What is the emergent medical component of the exam that you may be doing? And what is the non-emergent? Many programs, the forensic nurses are only involved after when there's non-emergent care that is being done. But sometimes you're called in, an emergent situation maybe you're there to do a pelvic exam on someone that's hemorrhaging after an assault and they're unconscious and they can't consent at the time because you're trying to save their life, right? They're bleeding out. And so doing an emergent speculum exam to try to help identify where that laceration is or where the trauma is coming from is something that could be done. But collecting DNA swabs while you're in there doing that or trying to do that is not an emergent procedure for medical purposes. And that's a non-medical component and that can't be done under the emergent procedure process as we talked about. So in looking at your policy and procedures and your responses, those are considerations to look at. How much the nurse is doing medical care they're actually doing in the program that you have. What are the medical components? What are the non-medical components? And then breaking down your medical component is it emergent or non-emergent? And then understanding that the non-medical end of things is never something that you can do under an emergency procedure for medical purposes. Next slide. Okay. And then just to wrap up, sometimes when these situations happen they can be really difficult decisions, clinically, emotionally, ethically, legally. And a lot of times there's conflict maybe between the forensic nurse and a provider or pressure from different positions or other nurses or law enforcement that really want you to do something that you may not be able to do because the patient doesn't have the capacity to give you that consent. And so you have to really have protocols in place and understand what to do, involve your risk management if you don't, and then just understand that these are difficult decisions and you need to be able to work through them so that you can make the best decision for your patient and legal decision, but it's not easy to do and they can certainly be emotionally charged at times. So I'm gonna go ahead and I think there's a question, but I don't think it's specific to the presentation. So I'm gonna go ahead and turn it over to Susan to keep moving on. So I know not all programs provide suspect exams, but if you're thinking about doing this, hopefully there'll be some things here that you'll be able to think about as you do this. So next slide. First of all, this is not legal advice. This is educational information. And before you make any decisions based on the information shared with you today, you should consult with your agency or hospital legal counsel. Next slide. So when you're doing a suspect exam, there are really two aspects to, consent is one aspect of it, but the other thing that needs to be there is a warrant. So law enforcement should provide a search warrant. And this is an order from a judge that requires the suspect to submit to having specific evidence collected. As a healthcare provider, and if you're doing this in the role as a nurse, the American Nurses Association is gonna say that you are a nurse and this person is your patient. You also need consent and written authorization if you're gonna release the records and specimens in order to prevent violating HIPAA. Next slide. So why is the search warrant important? Do you get called in to do a suspect exam? The suspect is willing to give you consent. There's no argument about it. The reality of it is the warrant protects the evidence if at a later time, there's a challenge to it. So the issue is not gonna be with you, it's gonna be with the evidence. And so later under advice of counsel, a suspect may say that there was duress or something else involved, there was no warrant and the evidence becomes inadmissible in the trial. So a search warrant is used to make sure the constitutional rights of the suspect have not been violated. The Fourth Amendment rights to guarantee that they cannot be searched unless it's based on probable cause. Next slide. So what does a search warrant achieve? It orders the suspect to submit, but we're gonna talk about some other state laws where it may also order you as the nurse to collect. And it makes sure that that evidence will be admissible in court so that the defense attorney can't come back and say that the evidence was collected improperly. Next slide. So your role though as a nurse is to get informed consent. And informed consent looks different depending on the type of patient you're dealing with. So one of the things you wanna be able to do is explain to the patient, and in here we're talking about the suspect, who you work for and what your role is because you probably are not working for law enforcement when you do this. You're working for your sexual assault nurse examiner or forensic nurse examiner program or maybe even your hospital. You need to be able as part of the informed consent to explain ahead of time what you're going to do to the suspect during the examination because unless they know what's going to happen, they can't give valid consent. You should be able to explain that you're not evaluating the suspect for identification or treatment of any current or chronic healthcare concerns. And as a nurse or as any type of healthcare provider, you have the ability to limit the type of care you give. As a nurse practitioner, I did not do toenail removals. So just because I have a patient coming to me with an infected toe doesn't mean I'm required to do that toenail removal on them. I can limit the care I give to a scope of which I feel comfortable or for which I'm able to do in that circumstance. And you wanna inform the suspect that any of the information you collect, specimens or photographs, will be shared with law enforcement and that you're gonna turn that over to them and that gets you out of your HIPAA obligations of not sharing protected health information with people who are not healthcare providers. Next slide. So here's the big issue that comes up frequently when we have this discussion about suspect exams. What do you do if the suspect refuses to allow evidence to be collected? And I think the first thing that should always be considered and it goes back to putting on your own oxygen mask first, is there a health and safety concern for either the patient, the suspect or the staff that would impact whether or not to collect evidence without consent? I mean, do you really want to have someone held down by two or three police officers and attempt to draw blood from them? It'll depend on what you're trying to do, what the circumstances are and the safety of yourself should always come first because if you can't be safe, you can't protect the safety of the patient and other staff members. So that's always gonna be a major concern. The second thing is, do your state laws provide you legal protection if you collect without consent? And even if the state does do that, what does your hospital or agency say? Do you have a policy, and Tara has talked about this quite a bit, that you need these policies in place before law enforcement brings a suspect to your doorstep? Do you have a policy that has been approved by legal counsel that allows you to collect without the consent of the patient so that your hospital doesn't come after you for violating your duty as a nurse? Next slide. So I always go to what does my Nurse Practice Act say? I know what my Nurse Practice Act says and it says nothing specifically about collecting from a suspect without consent. And I've been unable to get my board of nursing to make a ruling on that but there is language in my Nurse Practitioner Act that I think protects me or would place me in jeopardy if I did collect without consent. Are there state criminal procedure laws about search warrants and collecting of evidence that might either protect you from doing it without consent or place you in harm if you refuse to collect without consent? And ultimately there are different types of laws out there and common law, in the common law which are things like malpractice there is the tort of battery and battery is unwanted touching. And could you be guilty of a civil tort? So just because you're protected under your Nurse Practice Act because your board of nursing says it's fine to collect from a suspect without consent that just means you're not gonna lose your nursing license. It doesn't mean that you're not gonna be sued. Next slide. So here's my Nurse Practice Act and it is a failure to provide. So it is considered unprofessional practice in the state of Utah. If you fail to provide nursing service or service as a medication aid certified in a manner that demonstrates respect for the patient's human dignity and unique personal character and needs without regard to the patient's race, religion, ethnic background socioeconomic status, age, sex. And it's the last one that I think applies to suspects or the nature of the patient's health problem. And while being a suspect of a crime is not necessarily a health problem this is as close as I can get to saying they want me to give the same amount of dignity and respect to every patient that I take care of. And if I'm acting in my role as a nurse that suspect is my patient. Next slide. But if you happen to be practicing in Texas the laws may be a little different there. And the Texas Code of Criminal Procedure says the power of an officer executing a warrant in the executions of a search warrant the officer may call to his aid any number of citizens in this county who shall be bound to aid in the execution of the same. And if you look at the next slide this is actual language from an order for assistance in execution of a search warrant from Texas. And if you read at the bottom, it says any individual who fails to comply with this order. So they are saying to any physician, nurse medical technician or phlebotomist licensed by the state of Texas or other qualified person for removing intravenous blood that they have an affidavit and they want you to do that. And if you fail to do that you shall be when requested you shall be liable for contempt of this court and subject to all penalties authorized by law. So in Texas, you might be guilty of contempt of obstruction of justice. And therefore you may have jeopardy under the Texas courts but I have a little bit more to say about that. So go to the next slide. So what are your legal considerations for the healthcare provider? So, first of all, if you have a warrant releasing the evidence to law enforcement you don't need that written consent. It's not a violation of HIPAA. So if you collect under a warrant HIPAA kind of goes out the door. But the issue of whether or not you have committed a battery doesn't go away. Even if you're protected legally from not losing your nursing license or legally because your state has statutes that protect you. Next slide. There is some case law out there. O'Brien versus Senate Supreme Court of Vermont. This was a man who was accused of a DUI. He was brought into the hospital. Law enforcement tried to hold him down and draw a blood alcohol level. They were unable to get it because of his struggling. I don't know what they had done to him or what happened to him in the automobile accident but he was taken to the operating room. When he came back from the operating room the nurse walked up to him and said, I need to draw your blood and drew his blood but did not go through that whole process of informed consent. She did not tell him that the blood was being drawn and that he had to give to law enforcement. And the court found that the suspect could go forward with a battery charge against the nurse. And this went up to the Supreme Court of Vermont. So you wanna be aware of not only the statutes in your jurisdiction, but also what the courts have said. Next slide. So, as I said, I'm gonna speak more about what you do if you live in Texas or someplace where you may be compelled to collect. And I want you to think about how does performing a suspect exam without consent impact your role as a SANE? And I think we're all sitting here thinking of suspects as being male but what happens if the suspect is a female? Are you going to have law enforcement hold down a female while you place a speculum and collect swabs from her vagina? So I would love to be the defense attorney where you collect from a patient without their consent because this is what I'm going to say to you. I'm gonna say, Nurse Jones, isn't it true that you collected from my client here, my poor client sitting over here with his head down on the table without his consent? And you may say, I didn't do it but someone else in my program. So your program collects this evidence without consent and you're gonna say yes. And the next question that's gonna be asked is would you ever collect evidence from a victim without their consent? And I'm hoping that your answer is going to be no and that's all they're gonna say. But what they're gonna say in their closing argument after you've testified in your SANE case or whether any nurse has, obviously these nurses are biased. You heard them say that they would do things to a suspect that they would never do to a patient. And so obviously they are here as an arm of law enforcement and therefore they can't be trusted that they are biased. The other thing is you may lose your ability to provide hearsay evidence because you've now become part of the investigation. So I think before you ever get called in to do a suspect exam, these are discussions if you live in a state where you might be compelled to collect evidence without a patient's consent to sit down with your SART and talk about the implications of that. Talk about it with your prosecuting attorney. Do they really want you doing this? Is it going to jeopardize your ability to provide the best care possible to victims of sexual assault? And what are the ethical implications? We have states that have conscious exceptions. There are nine states that allow you to providers to refuse to prescribe contraception. What is the DNA code of ethics? What is the forensic nursing scope and standards of practice say? I mean, I think we have an ethical obligation specifically from the forensic nursing scope and standards of practice to not treat suspects of crime any differently than we would a victim. Next slide. And for those of you who said, well, I wouldn't collect it without the patient's consent, I might say to the patient, you can give me consent to collect this evidence or that 250 pound police officer is going to come over and he's going to collect from you. Is that consent? And so if you're interested about some of the issues involved with consent, I highly recommend this article from the Journal of Midwifery where it talks about what is consent. And that's basically as Tara and Diane talked about that shared decision-making, but then there's that nudging and directed counseling, which I think we all do it sometime. It's that when the patient says, well, what would you do if it was your daughter? And if you make that statement, if it was my daughter, this is what I would do. That's kind of that nudging directed counseling. But if you tell a suspect, if I don't do it, the 250 pound cop's going to come do it, that's coercion. And to be honest, if you hold somebody down and do it without their consent, that is assault. Next slide. So what is the ultimate answer? Make sure you have a policy and follow it. And these are decisions that should be made before the police knock on your door. You want to involve your hospital agency or legal counsel in the development of the policy and don't do this on your own. And you may even want your ethics committee to talk about this. If your state laws compel you to follow search warrant, have a discussion with both law enforcement and prosecutors about the potential implications of collecting without consent. That they should not be blindsided in a courtroom. A prosecutor shouldn't be blindsided because you worked with law enforcement and now you have lost your ability to fully testify in a sexual assault case. I think there's one more slide. So are there alternatives to collecting without consent? Well, first of all, law enforcement can collect, but be careful about what your nurse practice act says. If you are delegating a nursing function to someone who is not a nurse, you may be in violation of your nurse practice act. So be careful about that. So if you're standing there and directing them step-by-step how to do that, that may not be the best thing. Maybe you work with your crime lab to talk about how to collect samples and show them that it's not just a nursing role. The other thing is, if a suspect refuses to have evidence collected, make it a fight between the suspect and the court who has ordered this example. And to give you an example, Donna Kelly had a child victim who when describing what happened during the assault, explained that the ejaculation was coming out from the bottom of the penis. And at that point, the mother disclosed that the father had a defect. He had hypospadias. And so they ordered him to go have an exam done by a physician to document this hypospadias. And he got to the doctor's office. He refused to give the doctor consent. The doctor said, I'm not gonna force you to do it. What the judge then told the suspect was, if you refuse to have this evidence collected, I will instruct the jury that they may assume that if you'd had the exam, what they would have found would have been the hypospadias. And at that point, he went back and got a medical exam. So there are other things that can be done to equal the playing field if a suspect declines to have an exam. And I think it's time for Dale. Next slide. And again, I'll be around for any questions. Hi. Thanks, Susan. Now we will talk about consent of children and minors. And these are the learning outcomes. So as Diane mentioned before, really, the concept of informed consent in health care has evolved from a paternalistic approach in which the physician assumes the authority to decide what treatment was best for the patient into a more patient-centered model, which supports the patient's right to make his or her own independent decisions. In the patient-centered model, the patient needs to assume some measure of responsibility for their actions in their health care treatment outcomes because it is, indeed, a shared decision-making process. Laws and ethics also guide the informed consent process. And you see that informed consent involves a thorough description of the care, procedure, indications for the care, anticipated outcomes, alternative care, consequences for refusing aspects of the care. Consider the medical forensic exam in a minor patient, say a 14-year-old female, who has experienced acute assault and is presenting to the emergency department. So informed consent involves explaining every aspect of the care from, actually, Sarah, we were still in the private, yeah, every aspect of the care from consent to discharge planning, indications for the care to make sure that their bodies are OK despite what has happened to them, and also the forensic indications for care. Anticipated outcomes, such as giving the patient emergency contraception, the anticipated outcome is the prevention of pregnancy, but also with the caveat that nothing is ever 100%. So it is important to repeat the pregnancy test in two to four weeks. Alternatives to care. For instance, if a patient would decline a speculum exam, it's important that that adolescent understand that this would limit the forensic nurse's ability to examine the vagina and the cervix, and also collection of evidence, forensic evidence, may be compromised. Next slide. Interpretation and application of ethical principles regarding informed consent and shared decision-making in children and adolescent patients are complex. Multiple factors must be considered, including the legal statutes determining the age and qualifications for autonomy in adolescents, the child's developmental and cognitive ability, their lack of life experience, and the health concerns for which care is being sought. And it is important that assent for care be obtained from the child who, by law, is too young to give consent, but developmentally able to understand and participate in the care. This is especially important for children who have been sexually abused, because the control of their body had been taken away by the sexual abuse. And in order for them to begin healing, we need to give them back control over their bodies. Next slide, please. So medical forensic care should be explained to children and caregivers in a manner that is developmentally appropriate for the child and linguistically appropriate for both child and parent. Make sure that you don't use words that parents and children can't understand. Don't get caught up in medical or legal terms. Remember that parents, as well as children, can have cognitive delays. And so the process must be tailored to meet the parent and caregiver's level of understanding. Inform parents and children that the genital exam is a lot like when they go to their primary care doctor and they look at their private parts. For pre-pubertal children, it's so important that parents understand that a speculum will not be used. And for non-acute adolescent exams, typically speculums are not indicated as well. It's also important to inform that the child's medical record and forensic evidence kit will be released to law enforcement and child protective services as the forensic nurse is a mandated reporter of child sexual abuse and both are necessary for the CPS and law enforcement investigations of the sexual abuse concern. It's important that both child and caregiver understand that they can decline any portion of the exam. The forensic nurse should attempt to modify the exam process to make it acceptable to both parent and child. And also it's important to follow facility and jurisdictional policies. Next slide, please. And when we're thinking about assent, when you think about children zero to five years of age, they're generally not capable of informed assent. They can cooperate with the exam, but they really don't understand why you're doing what you're doing. But as children get older, you know, say six to 17 years of age, as they grow in their developmental capacity, their cognitive capacity, they're more able to give assent in a way that they're understanding why you're doing what you're doing. Next slide, please. There are certain aspects to consider regarding assent. First of all, we want to provide trauma-informed care, and we do not want to re-traumatize the child. Do not proceed with an exam if the child is unable to cooperate with the exam, even if the parent is giving consent. Do not restrain the child for the exam process. Now, there are exceptions such as a child who presents with unexplained vaginal bleeding or anal bleeding. This child may need to be sedated, have an exam under anesthesia in the operating room. And in that instance, the forensic nurse would go to the operating room, collect forensic evidence, and provide written and photo documentation of the exam that is being performed by the pediatric surgeon. And also, they're there in the operating room, so the pediatric surgeon can surgically repair the injury, if necessary. And there also, you need, when considering the exam in children and adolescents, you need to think about the child's, is the child presenting within time frame for evidence collection? Are there accompanying anogenital symptoms? Then perhaps the anogenital exam is more crucial for the child's health and safety and should be completed now. Is this a non-acute exam? It's been weeks, months, or years since the latest incident of sexual abuse. If the child isn't able to cooperate, then perhaps you say, well, let's come back another day. Next slide. In life-threatening situations for children and adolescents, as well as adults, medical care trumps forensic care. Unfortunately, there are situations when this occurs, such as the placement of a Foley catheter prior to the child's genital exam or evidence collections, so forensic care can be compromised. But there are certainly situations in which the child is critically ill, may even be sedated and on a ventilator, and medical forensic care is indicated. Typically, it is possible to obtain informed consent from the caregiver, but not assent from the child or adolescent. An example of this, we had a 15-year-old female who was abducted in her neighborhood, walking home from a friend's house. The adolescent presented a few hours later at a gas station, partially clothed, shot in the head, and crying that she had been sexually assaulted. Adolescent was rushed to the hospital. Parents had already notified police of their daughter being missing. The adolescent arrived at the hospital, required emergency medical care, surgical removal of the bullet, was ventilated and sedated. The same nurse was called to the PICU to complete the medical forensic exam. Parents provided informed consent. The adolescent was critically ill and could not provide assent. A speculum was not used for that exam. But there are also situations where the child is critically ill and the parent or legal guardian is refusing to provide consent. I've seen this happen in children, typically young children with significant physical abuse injuries and also sexual abuse injuries simultaneously. The child presents, and one or both parents may be perpetrators of the abuse or complicit with the perpetrator. And the parent or legal guardian refuses medical forensic care. So what can the forensic nurse do? The forensic nurse has options of contacting Child Protective Services for them to obtain emergency custody. Law enforcement can take emergency custody or in situations also a physician or an APRN or a physician assistant from the institution can provide consent. Next slide, please. Children placed in foster care may also present for acute or non-acute medical forensic examinations. Child Protective Services is the legal guardian of these children and informed consent should be obtained from a representative of the agency. For children in foster care that are presenting emergently, a CPS worker is typically on call during off hours and the agency can be reached to provide verbal consent. And I talked before about the parent or legal guardian that refuses to provide consent. And there are other alternatives that the forensic nurse has, such as law enforcement, Child Protective Services, or the medical provider. Next slide, please. The age at which a minor adolescent can consent for their own medical forensic exam varies by state. Be familiar with your state laws. Also the age for which an adolescent can have an anonymous forensic kit varies by state. The minor must be informed of existing limits to confidentiality. Forensic nurses are mandated reporters and most sexual assaults, even by a peer or a minor are required to be reported to law enforcement and in some states also CPS. For instance, in Ohio, a 15 year old can consent to the medical forensic exam. However, the parent must be notified in writing that their child presented to the hospital for a medical forensic exam within two weeks. So the adolescent should really be made aware that their parent will find out about what has happened. Oh, next slide, please. And teen victims of intimate partner violence. It's important that we as forensic nurses understand our state laws and the age at which a teen can consent for their own care and certainly state laws regarding mandatory reporting of teen intimate partner violence. Next slide. Sarah, do we have time for the case studies? Okay. So let's talk about some case scenarios. Six year old Rosie presents to the emergency department with her grandmother. Grandmother states that Rosie told her today that daddy hurt her pee pee with his pee pee last night. Grandmother states, Rosie has told her this before. And grandma says, I've told my daughter, Rosie's mother this in the past and mother does not believe her. Rosie is holding her vaginal area on top of clothes and crying. What should the forensic nurse do? The forensic nurse could certainly obtain consent from Child Protective Services or law enforcement. Next scenario. 10 year old Jose presents to the emergency department with law enforcement and his teacher. Jose disclosed to teacher that his father put his penis in his butt last night. The school notified mother and she stated the child was lying. Law enforcement took emergency custody and signed consent. Jose discloses the above information to the forensic nurse. When the forensic nurse begins evidence collection, Jose becomes very agitated and crying. What should the forensic nurse do? Certainly she has options as we talked about before, notifying Child Protective Services and law enforcement. Next slide, please. Four year old Malia presents with her mother to the emergency department. Mother states Malia was in the care of maternal grandfather earlier today. Malia disclosed to mother that grandfather touched her pee-pee with his pee-pee. Mother states, I know he did it because he did it to me. Mother signs the consent. Malia is very cooperative with the medical forensic exam. The forensic nurse begins the anogenital exam and evidence collection and mother starts crying and screams for her to stop. Malia is actually very cooperative but mom is just very agitated. What should the forensic nurse do? She should certainly take a timeout, attempt to calm mom down, see if there's someone, an advocate, maybe mother has a relative out in the lobby that can assist in calming mother down. But at this point in time, she has to explore other options to calm mother down. Next slide, please. 16 year old Allison presents with college age friend to the emergency department. Allison states, last night I was at a party at my friend's apartment and some college guy raped me. Allison wants a medical forensic exam including evidence collection, involvement of the police and STI and pregnancy prophylaxis, including HIV pep. Allison does not want her parents to know. What should the forensic nurse do? First of all, in these situations, I always explored with Allison, why don't you want your parents to know? And oftentimes it was something like, well, my life will be over. I'm gonna be grounded until I'm 18 and they're gonna take my cell phone away. And so oftentimes what I would do was say, I would be honest with Allison and she wants the police involved. She wants this care done. And honestly, in the state in which I practiced, I would also have to notify Child Protective Services. There was a letter that would go to her parents in two weeks saying that she was here for care. So I'd just be honest and I would say, Allison, your parents are gonna find out. Why don't I, do you want me to call your parents or do you want us to call your parents together? That would even be better. Let's call your parents together and let's tell them what happened. And that way I can help you tell your parents. And typically the teen was then okay with that. Next slide. And you can go to the next slide. These are just my references. These are the references. While you guys are thinking about that, I did wanna share that on the screen are all our presenters and within that, everybody's email is listed as well. If you have any questions directly, you can also directly contact them. All right, well, if there are no questions, I want to thank Diane, Tara, Susan and Gail for the information you've each shared with us today. There are certainly many takeaways for I'm sure each of us to start thinking critically or start or remind us to think critically about the things that are part of the day-to-day and really good reminder to just pause and make sure that the patients are being served in the best way possible. So with that, on behalf of the International Association of Forensic Nurses, we thank you for joining us today. And we look forward to seeing you on another presentation here soon.

Consent

informed consent

healthcare

clear communication

trust

medical ethics

risks

benefits

alternative treatments

children

minors