People often hear the term affirmative consent and assume it applies to all kinds of permission - including medical care. But that’s not true. Affirmative consent laws were never meant to govern how doctors get approval for treatment. They were created to define what counts as legal, voluntary sexual consent. If you’re wondering how patient permission works when someone can’t speak for themselves - like after a stroke or during an emergency - you’re thinking about a completely different system: informed consent and substituted judgment.
What Affirmative Consent Actually Means
Affirmative consent laws, first passed in California in 2014 under Senate Bill 967, require that sexual activity only happens when all parties clearly say yes - and keep saying yes. It’s not enough to just not say no. There must be active, ongoing, voluntary agreement. This standard, often called "yes means yes," was adopted by 13 U.S. states and most public universities to combat sexual assault on campuses. It’s about communication, boundaries, and power dynamics in intimate situations.These laws don’t mention hospitals, doctors, or medical procedures. They’re written into education codes and campus policy manuals - not health codes. The goal is to change culture around sexual encounters, not healthcare decisions.
How Medical Consent Actually Works
When a patient is unconscious, confused, or too sick to make decisions, doctors don’t ask for "affirmative consent." They follow a legal and ethical process called informed consent - and when that’s not possible, they use substituted judgment.Informed consent means the doctor explains:
- What’s wrong with the patient
- What the treatment does
- What the risks and benefits are
- What other options exist
- What happens if they say no
The patient must understand this information and agree - verbally or in writing - before anything happens. This isn’t new. It’s been standard since the 1914 Schloendorff v. Society of New York Hospital case, and it’s backed by laws like the Patient Self-Determination Act of 1990.
What Happens When a Patient Can’t Speak for Themselves?
If someone can’t give informed consent - say, they’re in a coma - the law steps in. The process isn’t about getting a new "yes." It’s about figuring out what the patient would have wanted.This is called substituted judgment. The doctor looks to:
- Advance directives (like a living will)
- A healthcare proxy or durable power of attorney
- Family members who know the patient’s values
For example, if a patient told their spouse years ago, "I never want to be kept alive on machines," that’s what the surrogate must follow - even if the family thinks it’s better to try everything. The law doesn’t let surrogates decide what they think is best. It requires them to guess what the patient would have chosen.
California Health and Safety Code Section 7185 spells this out clearly. So do similar laws in 46 other states. No state uses "affirmative consent" language here. Why? Because medical decisions aren’t about checking for enthusiasm - they’re about honoring past wishes.
Why the Confusion Exists
It’s easy to mix these up. Both involve "consent." Both involve people who can’t speak. And both are about autonomy. But the goals are totally different.Sexual consent laws are about preventing harm in personal relationships. Medical consent laws are about protecting rights in clinical settings. One needs constant verbal confirmation. The other needs clear documentation and known preferences.
Surveys show this confusion is common. At the University of Colorado Denver, 78% of undergraduates couldn’t tell the difference between sexual and medical consent. Medical students on Reddit threads like r/medschool regularly ask, "Is affirmative consent used in hospitals?" The top answer? "No. That’s for campus Title IX cases. Medical consent is about capacity and disclosure."
Even some healthcare workers get it wrong. In 2023, the Federation of State Medical Boards issued a formal advisory warning: "Physicians should not apply sexual consent standards to medical decision-making. Doing so creates unnecessary delays and misunderstands the law."
What You Can Do to Protect Yourself
You don’t need to wait for an emergency to make sure your medical wishes are followed. Here’s what actually works:- Write an advance directive. This is a legal document that says what treatments you want or don’t want if you can’t speak. Most hospitals have forms.
- Choose a healthcare proxy. Pick someone you trust - not just a family member, but someone who knows your values. Give them legal authority to speak for you.
- Talk to your doctor. Don’t assume they know your stance on life support, resuscitation, or feeding tubes. Have the conversation now.
- Keep copies. Give one to your proxy, your doctor, and your closest family member. Don’t just leave it in a drawer.
These steps don’t require "affirmative consent." They require planning. And they’re far more powerful than any vague idea of "permission."
The Bottom Line
Affirmative consent laws are important - but they belong in dorm rooms, not operating rooms. Medical substitution isn’t about getting a loud "yes." It’s about honoring a quiet promise you made before you lost your voice.If you want to control your care, don’t wait for a crisis. Document your wishes. Name your person. Talk about it. That’s the real way to make sure your body - and your choices - are respected.
