There’s a lot of confusion out there about affirmative consent and how it applies to medical care. You might have heard the term in news stories about campus sexual assault policies, and then wondered: does this mean doctors need a patient to say "yes" out loud before every treatment? The short answer is no. Affirmative consent laws don’t apply to medical substitution. They were never meant to.
What Affirmative Consent Actually Means
Affirmative consent laws - like California’s Education Code Section 67386 - were created to change how we think about sexual activity. They say consent isn’t just the absence of "no." It has to be an active, clear, and ongoing "yes." This standard was adopted by 13 U.S. states starting in 2014, mostly in response to campus sexual violence. It’s about communication, autonomy, and power dynamics between people in intimate situations.
These laws require that consent be:
- Freely given - no pressure, coercion, or manipulation
- Reversible - anyone can change their mind at any time
- Informed - both parties understand what they’re agreeing to
- Enthusiastic - not just passive compliance
- Specific - consent to one act doesn’t mean consent to another
This is the "yes means yes" model. It’s powerful. It’s necessary. But it’s not for the doctor’s office.
How Medical Consent Actually Works
When it comes to medical care, the legal standard is called informed consent. It’s been around since at least 1914, when a court ruled in Schloendorff v. Society of New York Hospital that every adult has the right to decide what happens to their body.
Informed consent means a doctor must tell you:
- What your condition is
- What the treatment does
- What the risks and benefits are
- What other options exist
- What happens if you say no
- Whether you’re able to understand and make this decision
You don’t have to say "yes" out loud. You don’t have to nod or sign a form in front of witnesses. You just need to understand the information and agree - verbally, through your actions, or in writing. That’s it.
What About Substitution? Who Decides If You Can’t?
What if you’re unconscious? If you have dementia? If you’re a minor and your parent isn’t around? That’s where substitution comes in - but not affirmative consent.
When a patient can’t make their own medical decisions, U.S. law uses two main approaches:
- Substituted judgment - the person making the decision (like a family member or legal guardian) tries to guess what you would have wanted, based on your past statements, values, and beliefs.
- Best interest standard - if your wishes are unknown, the decision-maker chooses what’s best for you based on medical evidence and ethical guidelines.
For example, if your mother had an advance directive saying she never wanted a feeding tube, her daughter can’t override that just because she thinks it’s "the right thing." The law requires the surrogate to follow your known wishes - not their own preferences.
This is completely different from affirmative consent. There’s no requirement for a loud, enthusiastic "yes" in real time. No ongoing verbal check-ins. No need to confirm consent every five minutes. Medical substitution is about honoring your past voice - not demanding a new one.
Why the Confusion? A Common Mix-Up
It’s easy to mix these up. Both involve consent. Both involve autonomy. Both sound like they’re about "rights." But they operate in totally different worlds.
Sexual consent laws were built to fix a problem: people assuming silence meant agreement. Medical consent laws were built to fix a different problem: doctors making decisions for patients without asking.
One study at the University of Colorado Denver found that 78% of undergraduates thought "affirmative consent" applied to medical treatment. That’s not just a misunderstanding - it’s dangerous. If patients believe they need to verbally confirm every injection or pill, they might delay care. If doctors think they need to get a verbal "yes" before every procedure, they might hesitate in emergencies.
The American Medical Association made this clear in its 2023 update to Opinion E-2.225: "Physicians should not apply sexual consent standards to medical decision-making processes. Doing so creates unnecessary barriers to urgent care and misunderstands the legal foundations of medical consent."
Real-World Examples
Let’s say you’re in the ER after a car crash. You’re unconscious. Your sister is there. The doctors need to operate to stop internal bleeding.
Under affirmative consent? They’d need your sister to say, "Yes, I consent to surgery," loudly and clearly, while you’re on the table, maybe even repeating it every 10 minutes.
Under real medical law? They look at your advance directive (if you have one). If you don’t, they ask your sister: "What would your sister have wanted?" If she says you’d want to live, they proceed. No need for a cheerleading squad.
Another example: a 16-year-old comes in for an STD test. In California, they can legally consent to that treatment without a parent. That’s not affirmative consent - it’s a specific exception under the law for minors in certain health situations. The doctor still has to explain what the test is for, what the results mean, and what treatment options exist. But the teen doesn’t have to say "yes" in front of three witnesses. They just need to understand.
What Happens If You Don’t Have a Plan?
Most people don’t have an advance directive. That’s okay - but it’s risky.
If you become incapacitated without a living will or healthcare proxy, state law decides who can speak for you. Usually, it’s your spouse, then adult children, then parents. But if they disagree? That’s when courts get involved. And that’s slow. And expensive. And emotionally exhausting.
It’s not about getting a signature. It’s about having a conversation. Talk to your family about what you’d want if you couldn’t speak. Write it down. Name someone you trust. Keep a copy where they can find it.
California’s Health and Safety Code Section 7185 makes it clear: the goal is to honor your wishes, not to replace them with someone else’s idea of what’s best.
What’s Changing? And What Isn’t
There’s no sign that affirmative consent laws will expand into medical care. In fact, courts are moving in the opposite direction.
In February 2023, the California Supreme Court ruled in Doe v. Smith that affirmative consent standards apply "exclusively to sexual misconduct determinations under Title IX and Education Code provisions, not to medical consent scenarios."
The federal CARE Act of 2023 focused on improving advance directives - not changing how consent is given. Meanwhile, state medical boards are training doctors to avoid mixing these concepts. The Federation of State Medical Boards issued guidance in March 2023 warning that "applying sexual consent models to medical care risks delaying life-saving treatment and creating legal liability."
Legal scholars like Deborah Denno at Fordham Law Review predict there’s "zero likelihood" this will change. The purposes are too different. The stakes are too high. The systems are too separate.
What You Should Do Now
You don’t need to learn a new legal framework. You just need to be clear about your wishes.
- Write down your medical preferences in an advance directive.
- Name a trusted person as your healthcare proxy.
- Talk to them - not just once, but regularly.
- Keep a copy in your phone, your wallet, and give one to your doctor.
If you’re a caregiver, don’t assume you know what’s best. Ask: "What would they have wanted?" Not "What do I think they should have wanted?"
And if someone tells you that doctors need "affirmative consent" for treatment? Correct them. It’s not just wrong - it could hurt people.
Medical decisions are personal. They’re not performances. They don’t need applause. They just need honesty, clarity, and respect.
