Member Update
April 5, 2024

Updated CMS Guidance on Informed Consent Does Not Apply to Emergency Care

On April 1, 2024 the Centers for Medicare and Medicaid Services (CMS) released new guidance on “informed consent,” and sent a letter to the country’s teaching hospitals and medical schools.

This was done because of “concerns about the absence of informed patient consent prior to allowing training- and education-related examinations outside of medically necessary procedures (such as breast, pelvic, prostate, and rectal examinations), particularly on anesthetized patients.”

ACEP reached out to CMS to understand the implications for emergency medicine. This update from CMS does not impact the current consent process for clinically indicated emergency care.

Rather, the guidance is meant for teaching and non-emergent situations where the examination is not linked to the patient complaint, and primarily those procedures done under anesthesia.

According to the ACEP Code of Ethics and the legal doctrine of informed consent, emergency physicians may treat without securing informed consent when immediate intervention is necessary to prevent death or serious harm to the patient, when the patient lacks decision making capacity, and when no one legally authorized to consent on behalf of the patient is available.

Emergency physicians should use existing processes for obtaining consent.

Related ACEP Policy Statements:

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