In our last article we understood consent and its importance in the privacy world. Consent can be made in various ways such as conditional, implied, expressed, continuing etc. we have noticed that under PHIPAA consent is broadly discussed and adopted several methods in order to form consent.
Now in today’s piece of writing we will discuss few more consent related topics and they are-
Refusal to or Withdrawal of Consent (22)
An individual may refuse to grant his/her consent or withdraw his/her consent to the collection, use or disclosure of personal health information by a custodian except when such withdrawal or or refusal is prohibited by law, personal health information, collected for the purpose to monitor the prescribing, dispensing or use of certain classes of drugs, or for the purpose of creating or maintaining an electronic health record or any other purposes provided under the act.
On account of refusal/withdrawal custodian is responsible to inform the individual about the reasonable steps required to act in accordance with the decision, implication of such refusal or withdrawal etc. However, under following circumstances Custodian may refuse to comply with such withdrawal or refusal –
- When the individual’s refusal or withdrawal of consent is likely to endanger the health of that individual or another person.
On account of refusal to comply with the consent of the individual, as soon as possible the custodian shall inform the individual about such collection, use or disclosure.
Capacity to Consent (23)
Under the act an individual is capable to understand if the individual is able to understand the relevant information or able to appreciate the reasonably foreseeable consequence of giving, not giving, withholding or withdrawing the consent.
In order to determine the incapacity, the custodian shall do so in accordance with the requirements and restrictions prescribed regulation. The capacity of an individual can be challenged by a psychiatrist as per the provisions provided under section 24.
Consent by a personal Representative and substitution decision maker (25)
An individual when an incapable of consenting then section 25 provides the name of persons who may on behalf and in the place of individual, act as a substitute decision maker for that individual by giving, withholding, or withdrawing the consent and they are-
- A person authorized in writing to act so
- A person appointed by a committee under infirm persons act
- A person acting under power of attorney
- Spouse or common-law partner
- The individual’s adult child
- The individual’s parent or guardian
- The individual’s adult sibling
- Public trustee
- The individual’s health care provider
The above mentioned list is indicative to know more such relations please refer to section 25 of PHIPAA. Please note that the person mentioned in list may consent only if a person is capable of consenting, willing to resume the responsibility, or not prohibited by court order or separation agreement.
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