Section IV: Obtaining patient consent

MA protocol for adult/adolescent SANEs

Obtaining patient consent

Informed consent

The SANE and/or medical provider must obtain informed consent from the patient for the physical exam and evidence collection. Obtaining consent ensures that the patient understands the various options of care available and what the exam and evidence collection process entails. The patient’s written consent must be obtained before initiating the SANE exam. Patient consent is documented on Form 1 of the MA Sexual Assault Evidence Collection Kit (MSAECK) Forms.

Guide for SANEs

The SANE must carefully explain the following points to the patient:

1. The purpose of the SANE exam is three-fold:
   1. A thorough head-to-toe and assessment for injury;
   2. Collection of physical evidence;
   3. Documentation of the patient’s report of the assault in the patient’s own words and through photographs.
2. Discuss with patient:
   1. The itemized steps involved in evidence collection and the potential value of the evidence.
   2. The patient’s right to decline any portion of the examination and evidence collection at any time during the examination process, even though they previously indicated their consent.
   3. The patient is not being asked to consent or commit to any course of action in the criminal justice system or the courts.
   4. The patient may or may not choose to report their assault to police at a later time; however, they do not need to file a police report at the time of the SANE examination.
   5. If the patient would like to report to police at the present time, the SANE can facilitate that process.
   6. The kit number (also known as the MSAECK number) will be given to the patient upon discharge and explain how the patient can use the number in the future.
   7. The terms of kit storage so that the patient understands the roles of the Police and the Crime Lab with respect to the storage of evidence:
      • All evidence collection kits, which include Forms 1-6 and samples of physical evidence are sealed and given a specific MSAECK number.
      • If the patient chooses to report to law enforcement, the police will transport the MSAECK to the appropriate crime lab.
      • The evidence should be transported by police to the appropriate crime lab for testing. The evidence preserved in the kit will be stored by police in the town where the assault occurred until transported to the crime lab or will be stored at the crime lab.
      • Kits are identified and stored at the crime lab by MSAECK kit number.
      • If a patient chooses not to report to police, the MSAECK is not processed (unless the patient is 15 years or younger). As per Crime Justice Bill H4011 enacted April 2018, "non-investigatory kits shall be safely stored by law enforcement in a manner that preserves evidence for the duration of the statute of limitations for all sexual assault and rape cases."
   8. Medical care will be provided whether or not the patient gives permission for any evidence collection.
   9. Provide the patient with the opportunity to ask questions and respond to any questions.

Consent modifications based on patient status

Patients with Intellectual/Developmental Disabilities (I/DD)

In order to ensure patients with intellectual disabilities are treated with dignity and respect, the following approaches may be beneficial:

1. The SANE/hospital staff should provide adequate time for the consent process so the patient has sufficient time to ask questions, have questions answered, and communicate consent before the patient signs the consent document.
2. The patient’s understanding may be indicated in many ways such as nodding their head, raising a hand, making a signal, or verbally answering questions.
3. Ask the patient to explain their understanding of any procedure described.
4. Persons with intellectual disabilities may not initially reveal the disability. The SANE/hospital staff must develop a relationship of trust and respect with the patient so that the full extent of the patient’s disability can be revealed. Additionally, establishing trust with the patient reduces the chance the patient will feel intimidated.

Patients with mental health challenges

1. Persons suffering from mental illness deserve the same dignified and respectful approach, used for patients without such challenges. Patients with mental health issues may remain competent to give informed consent.
2. A person with mental health issues may be admitted to the Emergency Department pursuant to an emergency restraint as a precautionary protective measure. A Section 12 restraint does not necessarily mean that the patient is incapable of giving consent for a SANE exam and evidence collection. When the patient is deemed medically safe and can cooperate with the exam, the SANE/hospital staff can proceed to obtain written patient consent using the appropriate kit form.

Patients 12 to 17 years of age (see Section VI: Caring for Special Patient Populations)

1. A minor’s consent is sufficient without parent/guardian co-signature to provide medical care and evidence collection when he/she presents for emergency care within 5 days/120 hours following a sexual assault.
2. Massachusetts law expressly provides instances such as exposure to sexually transmitted infections and risk of pregnancy as instances where persons under the age of 18 can consent for treatment pursuant to the “emergency treatment for minors” statute.

Patients under the influence of alcohol and/or drugs

A patient who is awake, alert, oriented to time, place, person, time, declared medically safe, and can cooperate is competent to give consent for SANE care and a forensic exam. A toxicology screen or alcohol level is not required for a patient to be deemed competent to consent for SANE care.

Patients unable to give consent

In some instances there may be high suspicion that a sexual assault has occurred, but the patient may be unresponsive and unable to give consent. These instances may prompt an Administrative Consent option in the facility where the SANE is providing care (refer to Section V: Caring for Patients in the ICU/OR).

Patients who do not give consent

A SANE will not examine a patient who declines an exam. The SANE shall consult with the Primary Nurse and ED Physician regarding the appropriate medical management, including medications and follow-up care. The ED staff may wish to consult with the Social Service Department or Child Protection Team, if available.