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

There’s a lot of confusion online about affirmative consent and medical decisions. You might have heard the term in the context of campus policies or #MeToo discussions, and now you’re wondering: does it apply when a doctor needs to make a treatment decision for someone who can’t speak for themselves? The short answer is no. Affirmative consent laws don’t govern medical substitution. They were never meant to.

What affirmative consent laws actually cover

Affirmative consent laws - like California’s Education Code Section 67386 or New York’s Campus Sexual Violence Elimination Act - are designed for sexual activity. They require clear, ongoing, voluntary agreement between people before and during any sexual act. It’s not enough to just not say no. You need an active, enthusiastic yes. This standard was created to combat sexual assault, especially in college settings where power imbalances and intoxication often blur boundaries.

These laws are specific to sexual contexts. They don’t apply to signing a surgery form, choosing a medication, or deciding whether to receive dialysis. The language is different, the intent is different, and the legal framework is completely separate.

How medical consent really works

When a patient can’t make their own medical decisions - because they’re unconscious, severely confused from dementia, or under sedation - the system doesn’t switch to an affirmative consent model. Instead, it uses informed consent and substituted judgment.

Informed consent means the doctor explains everything: what’s wrong, what the treatment does, what the risks and alternatives are, and what happens if you do nothing. The patient then agrees, usually by signing a form. This is standard practice for every surgery, chemotherapy session, or even a simple blood draw.

But when the patient can’t understand or communicate? That’s where substituted judgment comes in.

Substituted judgment: the real legal standard for medical substitution

Substituted judgment isn’t about asking a family member what they think is best. It’s about asking: What would this patient have chosen if they could speak?

Let’s say a 72-year-old woman with advanced Alzheimer’s suddenly has a heart attack. She never signed an advance directive. Her daughter is named as her legal surrogate. The doctors ask her: Did she ever say she didn’t want to be kept alive on machines? Did she talk about not wanting a feeding tube? What did she believe about quality of life?

The surrogate’s job isn’t to decide what she thinks is right. It’s to remember the patient’s values. If the woman once told her daughter, “I don’t want to live hooked up to tubes if I can’t talk to my grandkids,” then the daughter should act on that.

This isn’t guesswork. Courts and medical boards require surrogates to rely on documented wishes - like living wills, videos, emails, or even consistent verbal statements made over years. If no clear wishes exist, then the decision shifts to best interest - what a reasonable person would choose under those circumstances.

Why affirmative consent doesn’t fit in medicine

Imagine if doctors had to ask for affirmative consent every time they changed a patient’s IV bag or turned them in bed. “Are you okay with me adjusting your pillow now?” “Do you still consent to this antibiotic?” “Is this still a yes?”

It would be impossible. In emergencies, patients are unconscious. In dementia, they forget what’s happening five minutes ago. In pain, they can’t articulate a clear yes or no. Medical care can’t wait for ongoing verbal affirmation. It needs predictability, legal clarity, and respect for past wishes.

That’s why the American Medical Association explicitly says in its 2023 ethics guidance: “Physicians should not apply sexual consent standards to medical decision-making.” Doing so would delay care, confuse families, and create legal chaos.

What you can actually do to prepare

If you want to make sure your medical wishes are followed - whether you’re 25 or 75 - here’s what works:

• Write an advance healthcare directive - this is a legal document that names your decision-maker and states your treatment preferences.
• Have conversations with your family. Don’t assume they know what you’d want. Say it out loud: “If I can’t speak, I don’t want to be on a ventilator.”
• Give a copy to your doctor, your lawyer, and your main family member.
• Update it every few years or after a major health change.

In Australia, where I live, these documents are called Advance Care Directives and are recognized under state health laws. They’re not flashy, but they’re the only thing that truly protects your autonomy when you can’t speak for yourself.

What happens if you don’t plan ahead?

Without a directive, the law steps in. Most states and territories have a hierarchy: spouse, adult children, parents, then siblings. But without clear guidance, disagreements happen. A daughter might want to try everything. A son might believe Mom would have said no. Courts sometimes have to get involved - and that takes months.

In 2022, a case in Melbourne went to court because two siblings couldn’t agree on whether to remove a feeding tube from their mother with late-stage dementia. No advance directive existed. The judge had to rely on old hospital notes and testimony from neighbors about what she used to say. It was messy. It was expensive. And it was avoidable.

Common myths about medical consent

• Myth: A spouse can automatically make all medical decisions.
  Truth: Only if you’ve named them in writing or if they’re next in line under state law. Even then, they must follow your known wishes, not their own.
• Myth: If you’re unconscious, doctors can do anything to save you.
  Truth: They must still follow your documented preferences. If you’ve said no to CPR, they can’t do it - even if you’re unconscious.
• Myth: Affirmative consent means you have to say yes out loud every time.
  Truth: That’s only true for sex. In medicine, your signature on a form, your past statements, or your living will are your consent.

What’s changing - and what’s not

In 2023, California’s courts reinforced the separation between sexual and medical consent in the case Doe v. Smith. The ruling was clear: affirmative consent laws under Title IX and education codes apply only to sexual misconduct. They don’t touch medical decision-making.

Meanwhile, medical systems are getting better at advance care planning. Hospitals now routinely ask patients: “Have you thought about what you’d want if you couldn’t speak?” And more people are signing directives - especially after the pandemic.

But the confusion? It’s still everywhere. A 2023 survey at the University of Colorado Denver found 78% of undergrads mixed up sexual and medical consent rules. Medical students on Reddit still ask: “Is affirmative consent the same as informed consent?” And the answer is still no.

Bottom line

Affirmative consent is about preventing sexual assault. It’s not a medical tool. If you want to control your care when you can’t speak, you need an advance directive and honest conversations - not a “yes means yes” rule.

The system isn’t perfect. But it’s built on decades of legal precedent, ethical standards, and real-world experience. It’s not about asking for constant permission. It’s about honoring what you’ve already said - before you lost the ability to say it.