Under Prop 106, Patients Lose Their Legal Right to Know About Options for Cure

By Margaret Dore, Esq., MBA

Under current Colorado law, patients making a health care decision have the right to “informed consent.”[1] This includes the right to be fully informed:
not only of risks that might occur from the particular treatment in question, but also any alternative treatments . . .  (Emphasis added).[2]
"Any alternative treatments" includes those for cure, for example, chemotherapy or radiation to cure cancer.

Under Prop. 106, a patient instead has the right to make an “informed decision,” which is defined as follows:
Informed decision” means a decision that is:  . . .
made after the attending physician fully informs the individual of: . . . 
all feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control.  (Emphasis added).[3]
With this language, the patient’s right to be told about options for cure is no longer clear because options for cure are not specifically listed. Per the rule of statutory construction, ejusdem generis, a patient does not have this right.

Per the rule, a general reference in a statute only applies to the same kind of things specifically listed.[4] Prop. 106 has a general reference to “all feasible alternatives or additional treatment opportunities” and also refers to specific alternatives:
comfort care, palliative care, hospice care, and pain control.[5]
Per the rule, these specific alternatives, all having to do with death and dying, limit “all feasible alternatives or additional treatment opportunities” to those concerning death and dying. Under Prop. 106, patients lose the right to be told of options for cure.

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[1]  Williams v. Boyle, 72 P.3d 392, 398 (2003) and C.R.S.A. § 15-18.7-102(7)(“‘Decisional capacity’ means the ability to provide informed consent . . .”)
[2]  Unthank v. US, 732 F.2d 1517, 1521 (1984).
[3]  Prop. 106, § 25-48-102(5)(c)(V), which can be viewed at A-5 & A-6 at this link: https://choiceisanillusion.files.wordpress.com/2016/10/prop-106.pdf
[4]  https://en.oxforddictionaries.com/definition/ejusdem_generis
[5]  Prop. 106, § 25-48-102(5)(c)(V), supra, at https://choiceisanillusion.files.wordpress.com/2016/10/prop-106.pdf

"Ejusdem generis," Latin for 
"of the same kind"