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

There’s a lot of confusion online about affirmative consent and medical decision-making. You might have heard the term in news stories about campus policies or #MeToo reforms-and assumed it applies to doctors, hospitals, or family members making treatment choices for someone who can’t speak for themselves. It doesn’t. Not even close.

What affirmative consent actually means

Affirmative consent laws were never designed for healthcare. They were created to redefine sexual consent in educational and legal settings. Starting in 2014, California passed Senate Bill 967, which required colleges to adopt a "yes means yes" standard: consent must be clear, voluntary, ongoing, and can be withdrawn at any time. Since then, 13 other states have followed with similar rules for sexual activity on campuses and in public spaces.

These laws focus on one thing: preventing sexual assault by requiring active, verbal, or physical agreement between people engaging in intimate contact. They don’t mention doctors. They don’t mention hospitals. They don’t mention family members deciding for an unconscious relative. And they never will.

Medical consent works completely differently

When a patient can’t make their own medical decisions-because they’re unconscious, severely confused, or a minor-the system doesn’t ask for a "yes" in the moment. It doesn’t demand ongoing verbal confirmation. Instead, it uses something called informed consent and substituted judgment.

Informed consent means a doctor must explain:

• What the condition is
• What the treatment does
• What the risks and benefits are
• What other options exist
• What happens if nothing is done
• Whether the patient is able to understand and agree

This isn’t a form you sign and forget. It’s a conversation. And if the patient is unable to participate in that conversation-say, after a stroke or during an emergency-the law steps in with a backup system.

How substitution works in medical care

When a patient loses decision-making capacity, the law doesn’t let just anyone decide. It follows a strict order:

1. First, check for an advance healthcare directive-a legal document where the patient already wrote down their wishes, sometimes even naming a decision-maker.
2. If there’s no directive, a legally appointed healthcare proxy or durable power of attorney for healthcare takes over.
3. If no proxy exists, the next of kin usually steps in, following state-specific hierarchy: spouse, adult children, parents, siblings.

But here’s the key: the surrogate isn’t supposed to decide what they think is best. They’re supposed to make the decision the patient would have made, based on what they know about the patient’s values, beliefs, and past statements. That’s called substituted judgment.

For example: if a patient told their family 10 years ago they never wanted to be kept alive on a ventilator, and now they’re in a coma, the family can’t say, "I think the doctors should try everything." They’re legally and ethically bound to honor what the patient would have chosen.

Why you can’t mix the two systems

People often think, "If we need a clear yes for sex, why not for surgery?" But the goals are totally different.

Sexual consent laws are about preventing coercion in personal relationships. Medical consent is about protecting autonomy in a power imbalance where the doctor holds expertise, access to life-saving tools, and control over information.

Imagine if every time a doctor needed to give antibiotics for pneumonia, they had to ask, "Do you want this?" every 15 minutes while the patient was on a ventilator. Or if a parent had to verbally confirm consent for their child’s appendectomy every time a nurse walked into the room. That’s not patient care-that’s dangerous chaos.

Medical ethics and law recognize that patients can’t always speak, but their choices still matter. That’s why we have advance directives, proxies, and substituted judgment. They’re not perfect, but they’re designed to honor the person’s autonomy-even when they can’t say a word.

What happens if no one knows what the patient wanted?

Sometimes, there’s no advance directive. No family member has any idea what the patient would have chosen. In those cases, the law shifts to the best interest standard.

This means decisions are made based on what a reasonable person would choose under similar circumstances. For example:

• If a 90-year-old with advanced dementia has a treatable infection, doctors will usually treat it-it’s low-risk and improves quality of life.
• If that same person has end-stage cancer and is in constant pain, aggressive interventions like intubation might be avoided.

There’s no "yes" required here. No ongoing affirmation. Just a careful, documented judgment based on medical facts and ethical guidelines.

Real-world examples of confusion

A 2023 survey at the University of Colorado Denver found that 78% of undergraduate students couldn’t tell the difference between affirmative consent for sexual activity and medical consent for treatment. That’s not surprising-both use the word "consent." But they’re like comparing a fire alarm to a smoke detector. Both save lives, but they work in completely different ways.

Reddit threads like r/medschool are full of medical students asking, "Is affirmative consent required for surgery?" The top answer always says: "No. That’s for sexual misconduct policies. Medical consent is about disclosure and capacity."

Even some hospitals have struggled with this. In 2022, a California hospital briefly trained staff to use "yes means yes" language when asking patients about procedures. It caused panic. Nurses didn’t know how to handle patients who were sedated. Families thought they had to chant "yes" to approve a blood transfusion. The hospital quickly reversed the policy after the state medical board issued a warning: "Applying sexual consent standards to medical care creates legal risk, delays treatment, and misrepresents the law."

What you should do instead

If you care about controlling your medical care-even if you can’t speak for yourself-here’s what actually works:

• Write an advance healthcare directive. It’s free. You can do it online in under 20 minutes.
• Name a trusted person as your healthcare proxy. Talk to them. Make sure they know your values-not just your medical wishes.
• Keep a copy in your phone, with your primary doctor, and give one to your proxy.
• Update it every few years, or after major life changes: divorce, diagnosis, loss of a loved one.

That’s how you ensure your voice is heard-even when you’re silent.

Why this matters now

As the population ages and chronic illnesses become more common, more people will face decisions about life support, feeding tubes, resuscitation, and palliative care. The last thing we need is for families to be confused by pop-culture terms like "affirmative consent."

Medical decisions aren’t about getting a loud "yes." They’re about respecting a lifetime of values, choices, and quiet promises made in moments of clarity.

The law already has tools for this. You just have to use them.