Affirmative Consent Laws: How Patient Permission for Medical Substitution Actually Works

There’s a big mix-up going on. If you’ve heard the term affirmative consent in relation to medical care, you’re not alone-but you’re also wrong. Affirmative consent laws don’t apply to doctors, hospitals, or patient substitutions. They were never meant to. These laws were created to define what counts as legal sexual consent, especially on college campuses and in cases of assault. They say ‘yes means yes’-active, ongoing, voluntary agreement. But when it comes to medical decisions, especially when a patient can’t speak for themselves, the rules are completely different.

What Affirmative Consent Really Means

Affirmative consent laws started appearing in U.S. states around 2014, mostly after the #MeToo movement pushed for clearer standards around sexual activity. California’s Senate Bill 967, which took effect in 2015, was one of the first. It requires that consent for sexual activity be “affirmative, conscious, and voluntary.” That means silence isn’t consent. Passing out isn’t consent. Being pressured isn’t consent. Consent has to be clear, ongoing, and can be pulled at any time.

This standard is used in campus disciplinary hearings, criminal cases involving sexual assault, and training programs for students and staff. It’s not a medical rule. It’s not a hospital policy. It’s a legal framework designed to protect people from sexual violence-not to govern who can sign a surgery form.

Medical Consent Has Its Own Rules

When a patient needs treatment, doctors don’t ask for “affirmative consent” the way a partner might. They follow informed consent. That’s a legal and ethical standard that’s been around for over a century. It started with a 1914 court case, Schloendorff v. Society of New York Hospital, where a patient was operated on without permission. The court ruled: every person has the right to decide what happens to their body.

Today, informed consent means the doctor must tell the patient:

• What the diagnosis is
• What the treatment involves
• What the risks and benefits are
• What other options exist
• What happens if they say no
• Whether they’re capable of understanding all this

The patient doesn’t have to say “yes” out loud every five minutes. They just need to understand the information and agree-verbally, in writing, or sometimes just by showing up for the procedure. That’s it.

What Happens When a Patient Can’t Consent?

Now, what if the patient is unconscious? Too confused? Too young? That’s where the confusion with “affirmative consent” really kicks in. People assume if someone can’t say “yes,” someone else has to say it for them. That’s true-but it’s not called affirmative consent. It’s called substituted judgment or best interest standard.

In California, the Health and Safety Code says that if a patient lacks capacity, a legally authorized person-like a spouse, adult child, or court-appointed guardian-must make the decision. But here’s the key: they don’t decide what they would want. They decide what the patient would have wanted, based on what they know about the patient’s values, beliefs, and past statements.

For example: If a 72-year-old man who never wanted to be hooked up to machines says he’d rather die than live on a ventilator, and he’s now in a coma, his wife can’t say, “I think he’d want to try everything.” She has to say, “He told me he didn’t want to be kept alive by machines.” That’s substituted judgment.

If there’s no record of what the patient would have wanted, then the surrogate uses the “best interest” standard. That means choosing the option that gives the patient the best chance of recovery, least pain, and most dignity. But again-no one is asking for an ongoing “yes” like in a sexual encounter. No one is checking for enthusiastic nodding.

Why People Get This Wrong

It’s not your fault. The language overlaps. “Consent” is used in both settings. Universities run training sessions on affirmative consent for students and also have medical services on campus. Students see both, hear the same word, and assume they’re the same thing.

At the University of Colorado Denver, a 2023 survey found 78% of undergrads couldn’t tell the difference between sexual affirmative consent and medical consent. That’s a problem. It leads to confusion when families are making life-or-death decisions. It leads to doctors being asked to explain “why we don’t need a verbal yes every time.”

Even medical students get tangled up. On Reddit’s r/medschool, a top-rated comment from January 2023 said: “Affirmative consent is for sexual activity policies on campus; medical consent uses different standards based on patient capacity and disclosure requirements.” That comment got over 1,200 upvotes. The students know. The system just hasn’t caught up.

What the Law Actually Says

In 2023, the California Supreme Court made this crystal clear in Doe v. Smith. The court ruled: “Affirmative consent standards apply exclusively to sexual misconduct determinations under Title IX and Education Code provisions, not to medical consent scenarios.”

The Federation of State Medical Boards issued a similar advisory in March 2023: “Physicians should not apply sexual consent standards to medical decision-making processes.” Why? Because it would slow down emergency care. It would confuse families. It would create legal chaos.

The American Medical Association’s 2023 guidelines reinforce this: “Applying affirmative consent models to medical care creates unnecessary barriers to urgent treatment and misunderstands the legal foundations of medical consent.”

Real-World Examples

Let’s say a 16-year-old girl comes into the ER after a car crash. She’s unconscious. Her parents aren’t there. Can the doctor wait for affirmative consent? No. The doctor acts under emergency exception rules-saving life and limb takes priority.

Now, let’s say that same girl had an advance directive saying she didn’t want blood transfusions because of her religious beliefs. The doctor has to honor that. No “yes” needed. No verbal confirmation. Just the document.

Or consider a 12-year-old in New Zealand who needs treatment for an STI. Under New Zealand law, minors can consent to sexual health services without parental permission. That’s not affirmative consent-it’s statutory capacity. The law recognizes that some people, even if young, can make certain medical decisions on their own.

What You Should Do

If you’re a patient: Write down your wishes. Name someone you trust to speak for you if you can’t. Fill out an advance healthcare directive. Talk to your family about what you’d want. Don’t assume they’ll guess right.

If you’re a family member: Don’t assume you know what the patient would want. Look for clues. Did they say they didn’t want to be a burden? Did they refuse a treatment in the past? Did they sign a living will? Use those as your guide-not your own fears or hopes.

If you’re a healthcare worker: Don’t confuse the two. Train your staff on the difference. Post clear signs in waiting rooms: “Informed Consent for Treatment ≠ Affirmative Consent for Sexual Activity.” Clarify this early. Save everyone the stress.

Bottom Line

Affirmative consent laws are about preventing sexual violence. They’re not about medical care. Medical consent is about autonomy, understanding, and respect. Substituted judgment is about honoring a person’s voice-even when they can’t speak. Mixing them up doesn’t make things safer. It makes them harder.

There’s no such thing as “affirmative consent for medical substitution.” That phrase doesn’t exist in any law, policy, or ethical guideline. It’s a myth. And the sooner we stop repeating it, the better decisions patients and families will make.