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.
Ian Long
Man, I’ve seen so many people confuse these two concepts it’s insane. Affirmative consent is about sexual autonomy - not medical decisions. You don’t need someone screaming "YES!" before they get an IV. You need paperwork, a proxy, and a damn living will. Stop mixing up campus policy with ER protocols.
Matthew Maxwell
It’s astonishing how many people conflate legal frameworks designed for interpersonal dynamics with clinical ethics. Affirmative consent, as codified under SB 967, is a pedagogical tool for sexual autonomy on university campuses - not a medical standard. Informed consent, grounded in centuries of jurisprudence from Schloendorff onward, operates under entirely different epistemological and ethical parameters. The conflation reflects a dangerous erosion of legal precision.
Lindsey Wellmann
OMG I JUST REALIZED I’VE BEEN WRONG THIS WHOLE TIME 😭 Like… I thought doctors needed a "yes yes yes" before surgery?? Like, do they have to get a thumbs-up from your coma self?? 🤦♀️ Thanks for clarifying!! Now I’m gonna go fill out my advance directive like a responsible adult 💪🩺
Micheal Murdoch
This is such an important distinction, and honestly, it’s heartbreaking how many people don’t get it. We talk about consent like it’s one universal idea, but context changes everything. In bed, it’s about ongoing, enthusiastic agreement - because power, pressure, and silence can be coercive. In a hospital, it’s about honoring your past self’s voice when you can’t speak anymore. It’s not about enthusiasm - it’s about fidelity to your values. That’s why advance directives matter so much. They’re your voice after you’ve lost the ability to speak. Don’t wait until you’re in a coma to figure this out. Talk to your family. Write it down. Name your person. That’s real autonomy.
Jeffrey Hu
Look, if you think affirmative consent applies to medicine, you’ve never read a single medical ethics textbook. The entire foundation of modern healthcare law is built on capacity, disclosure, and substituted judgment - not whether someone says "yes" loudly enough. This isn’t a college party. It’s a life-or-death scenario. Stop trying to apply dating app logic to ICU protocols. It’s not just wrong - it’s dangerous.
Drew Pearlman
I just want to say how glad I am that someone finally broke this down clearly. I used to think medical consent was just like dating - you ask, they say yes, done. But after my grandma had that stroke and we had to guess what she’d want… it hit me. It’s not about getting a yes. It’s about listening to the quiet "no" she whispered years ago about feeding tubes. That’s the real consent. The kind that doesn’t need to be shouted. The kind that lives in old emails, handwritten notes, and late-night talks. If you haven’t had that conversation with someone you love - do it. Now. Don’t wait for the emergency.
Meghan Hammack
YESSSSSS this is so important!! I’m a nurse and I’ve had family members scream at me "Why didn’t you just ask her if she wanted the tube?!" like it’s a simple yes/no question. But she was in a coma for 3 weeks! We had to dig up her living will from 2012. That’s consent. Not "do you want this?" - it’s "what did she say she wanted before she lost her voice?" Thank you for saying this!!
RAJAT KD
Clarification is necessary. Affirmative consent laws are not applicable to medical practice. Informed consent and substituted judgment are legally and ethically distinct. Misapplication leads to clinical delays and legal liability. This confusion is dangerous.
Darren McGuff
I’ve worked in emergency medicine for 22 years, and I’ve seen this confusion cause real harm. Families show up demanding "affirmative consent" from a patient who’s brain-dead, thinking we’re being unethical if we don’t get a verbal yes. We’re not. We’re following the law - honoring their advance directive, their proxy, their values. The system works. It’s just not sexy like "yes means yes." But it saves lives. Please stop mixing metaphors.
Heather Wilson
So… you’re saying we shouldn’t make people say "I consent" before every shot? Like, what if they’re shy? Or introverted? Isn’t that just… suppressing their voice? Maybe we need affirmative consent in medicine too - just to be safe? I mean, if it works for sex, why not for surgery? It’s about autonomy, right? 🤔
Chris Kauwe
Let’s be real - this whole "affirmative consent" thing is just woke ideology bleeding into every corner of life. You can’t have one standard for sex and another for medicine. It’s cultural inconsistency. If we’re going to demand enthusiastic verbal agreement for intimacy, we should demand it for everything. Otherwise, it’s just performative virtue signaling. The medical system is already broken - don’t make it worse by importing campus activism into the OR.
Alicia Hasö
Thank you for writing this. Seriously. I’ve been trying to explain this to my college-aged niece for months. She thought her mom’s living will was "just a formality" and that doctors would "ask her if she wanted to live" if she got hurt. I showed her this post - and she cried. Not because she was sad - because she finally understood. This isn’t about politics. It’s about dignity. Your voice matters even when you’re silent. Document it. Name your person. Talk about it. Don’t wait for the crisis. You’re not being dramatic - you’re being responsible. And that’s brave.
Ashley Kronenwetter
The distinction between affirmative consent and substituted judgment is legally and ethically unambiguous. The application of sexual consent standards to medical decision-making is not only incorrect but constitutes a misinterpretation of statutory and common law. Medical practitioners are bound by the Patient Self-Determination Act and state surrogate decision-making statutes, none of which incorporate the concept of affirmative consent. This conflation undermines both legal integrity and patient autonomy.
Aron Veldhuizen
Wait - so you’re saying that if someone is unconscious, and their family says "they’d never want to be on a machine," but the doctors think they might have changed their mind? Then what? Do we just guess? That’s not consent. That’s a gamble. If you’re going to make life-or-death decisions, you need active, real-time consent. Otherwise, you’re just playing God with someone’s body. Affirmative consent should apply everywhere - because no one should ever be assumed to have consented to anything.
Annette Robinson
My dad had a stroke last year. We found his advance directive in his wallet. It said "no ventilators, no feeding tubes." The hospital honored it. No drama. No yelling. Just quiet respect. That’s the kind of consent that matters. Not "yes yes yes" - just "this is what I meant before I lost my words." I’m so glad someone finally wrote this. My whole family finally gets it now.