Affirmative Consent Laws: What They Really Mean for Patient Permission and Medical Substitution

There’s a lot of confusion out there about affirmative consent laws and how they relate to medical decisions-especially when someone can’t speak for themselves. You might have heard the term in news stories about campus policies or court cases, and assumed it applies to doctors, hospitals, or family members making choices for an unconscious patient. But that’s not how it works. In fact, affirmative consent laws don’t govern medical substitution at all. They’re about sexual activity. Period.

What Affirmative Consent Actually Means

Affirmative consent isn’t a medical term. It’s a legal standard created to address sexual assault and misconduct, especially on college campuses. Starting in 2014, states like California began passing laws that require clear, ongoing, and voluntary agreement before any sexual activity. It’s not enough to just say "no"-you have to say "yes," clearly and without pressure. The model is often called "yes means yes," and it’s built around five key principles: freely given, reversible, informed, enthusiastic, and specific.

These rules were designed to shift the culture around sexual encounters. They’re used in campus disciplinary hearings, Title IX investigations, and sometimes criminal cases. But they were never meant to be applied to doctors, nurses, or family members deciding whether to give a patient a blood transfusion, surgery, or medication.

How Medical Consent Really Works

When it comes to medical treatment, the legal standard is informed consent. This has been around for over a century. It started with a landmark 1914 court case, Schloendorff v. Society of New York Hospital, where the court ruled that every adult has the right to decide what happens to their body. Since then, every state has built its own rules around this principle.

For a medical procedure to be legal, the provider must:

• Explain what the treatment is and why it’s needed
• Detail the risks and benefits
• Offer alternatives, including doing nothing
• Make sure the patient understands all of this
• Get the patient’s voluntary agreement-usually with a signature

This isn’t about whether the patient says "yes" out loud during the procedure. It’s about whether they understood what they were agreeing to before it happened. A patient can change their mind at any time, even after signing, but the consent itself is a one-time decision based on full disclosure.

What Happens When a Patient Can’t Consent?

Here’s where the confusion really kicks in. If someone is unconscious, severely ill, or has dementia, they can’t give informed consent. So who decides for them? The answer isn’t affirmative consent. It’s substituted judgment or best interest standard.

Substituted judgment means the person making the decision-usually a family member or court-appointed guardian-must ask: "What would this patient have chosen if they were able to decide?" This isn’t about what the surrogate thinks is best. It’s about remembering the patient’s values, religious beliefs, past statements, and life choices.

For example: If a 68-year-old man with advanced Alzheimer’s had told his wife five years ago that he never wanted to be kept alive on a ventilator, and he’s now in a coma, the wife can legally refuse life support based on what he would have wanted. That’s substituted judgment. It’s not about whether she says "yes" right now. It’s about honoring his voice from the past.

Some states also use the "best interest" standard when there’s no clear record of the patient’s wishes. In that case, the decision-maker must choose what a reasonable person would want under similar circumstances. Again-no "affirmative" verbal agreement required.

Why the Confusion Exists

Why do so many people think affirmative consent applies to medical decisions? Partly because the words sound similar. "Consent" is used in both contexts. But that’s like saying "bank" means the same thing whether you’re talking about a river or a financial institution.

Another reason? Universities and hospitals often train staff on both topics. A nursing student might learn about sexual assault prevention on Monday and medical ethics on Wednesday. Without clear separation, it’s easy to mix them up. A 2023 survey at the University of Colorado Denver found that 78% of undergraduates couldn’t tell the difference between the two standards.

Even some medical professionals get confused. Reddit threads from medical students show the same pattern-people thinking they need to get a patient to say "yes" out loud during every step of a procedure. That’s not how it works. And worse, applying sexual consent rules to medicine could delay life-saving care. Imagine a nurse waiting for a patient to verbally confirm each time they adjust an IV drip during emergency surgery. That’s not consent. That’s danger.

Real-World Examples

California law is one of the clearest examples. Under California Civil Code Section 56.11, doctors must disclose all material risks before treatment. That’s informed consent. But under California Education Code Section 67386, affirmative consent is defined as "affirmative, conscious, and voluntary agreement" for sexual activity. Two different codes. Two different purposes.

Same with minors. In California, a 12-year-old can legally consent to treatment for STDs or substance abuse without parental permission. That’s based on public health law, not sexual consent law. The state recognizes that some patients need care even if they can’t get a parent’s signature.

And when it comes to advance directives-those legal documents where you say what you want if you’re ever unable to speak-you don’t need to say "yes" every year. You sign once. The document stands. No ongoing affirmation required.

What You Should Know

If you’re preparing an advance directive for yourself or helping a loved one make medical decisions:

• Don’t worry about "affirmative consent." It doesn’t apply.
• Focus on clear, written instructions: Who should make decisions? What treatments do you want or refuse?
• Talk to your family about your values-not just your medical wishes. That’s what guides substituted judgment.
• Keep your documents updated. A form signed 15 years ago might not reflect who you are today.
• Give copies to your doctor, family, and anyone named in your directive.

If you’re a caregiver or family member:

• You’re not a substitute for the patient-you’re their voice.
• Don’t decide what you think is best. Ask: "What would they have chosen?"
• Don’t wait until an emergency to have these conversations.
• It’s okay to say "I don’t know." That’s why advance directives exist.

Legal Clarity in 2026

As of early 2026, no state has tried to apply affirmative consent laws to medical substitution. In fact, courts have been clear: they’re separate. 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 American Medical Association reinforced this in 2023, warning doctors that applying sexual consent rules to medical care "creates unnecessary barriers to urgent care and misunderstands the legal foundations of medical consent." This isn’t going to change. The purposes are too different. Sexual consent laws aim to prevent harm in personal relationships. Medical consent laws aim to protect autonomy in clinical settings. They’re not interchangeable. They’re not even close.