There’s a common misunderstanding floating around-especially in student health centers, hospital waiting rooms, and online forums-that affirmative consent laws apply to medical decisions. That’s not true. And mixing these two very different legal systems can lead to real harm: delays in care, confusion among families, and even legal mistakes by providers who think they need to get a verbal ‘yes’ every time they change a treatment plan.

What Affirmative Consent Actually Means

Affirmative consent isn’t a medical term. It’s a sexual consent standard. First introduced in California in 2014 with Senate Bill 967, it requires that sexual activity only happens when all parties give clear, ongoing, voluntary agreement-‘yes means yes,’ not ‘no means no.’ This standard spread to 13 states by 2023, mostly in college policies and sexual assault prevention laws. It’s about autonomy in intimate situations. It’s about preventing coercion. It’s not about who can sign a surgery form.

At universities like USC and CU Denver, students are trained on affirmative consent for dating and party settings. But when those same students end up in a hospital, they often think the same rules apply to medical decisions. They ask: ‘Can my partner say yes for me if I’m unconscious?’ Or: ‘Does my doctor need me to say ‘yes’ out loud before giving antibiotics?’ The answer to both is no.

How Medical Consent Really Works

Medical consent operates under a completely different system called informed consent. This isn’t new-it’s been around since the 1914 Schloendorff v. Society of New York Hospital case. Back then, the court ruled that every person has the right to decide what happens to their body. That principle is now written into state laws across the U.S.

Informed consent means your 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 capable of understanding all this

You don’t need to say ‘yes’ out loud. You don’t need to nod or sign a form every time a nurse gives you a shot. You just need to understand enough to make a decision. For routine things-like a flu shot or a blood test-your agreement is assumed. For big procedures-like surgery or chemotherapy-you’ll sign a form. That’s it.

What Happens When You Can’t Consent?

The real question people are asking isn’t about affirmative consent. It’s about substitution: Who speaks for me if I’m in a coma, or have dementia, or am a minor? That’s where substituted judgment comes in.

This isn’t a guess. It’s a legal standard. In California, Health and Safety Code Section 7185 says that if you’re unable to make your own medical decisions, your surrogate-usually a family member or court-appointed guardian-must decide what you would have wanted. Not what they think is best. Not what’s easiest. What you would have chosen based on your values, past statements, or religious beliefs.

For example:

• If you told your spouse you never wanted a feeding tube, and you’re now in a permanent vegetative state, the surrogate must honor that.
• If you never talked about end-of-life care, the surrogate uses the ‘best interest’ standard-but only as a last resort.

This system relies on documents you can prepare ahead of time: advance healthcare directives, living wills, and durable power of attorney for healthcare. These aren’t optional. They’re essential. Over 46 states have laws that require hospitals to ask patients if they have these documents. Yet only about 30% of adults have completed them.

Why the Confusion Exists

The mix-up isn’t accidental. It’s the result of language overlap. Both systems use the word ‘consent.’ Both involve personal autonomy. Both are about control over your body. But that’s where the similarity ends.

Think of it this way:

• Affirmative consent is like a dance: you need constant, active, verbal or physical signals that your partner wants to keep going.
• Informed consent is like signing a lease: you read the terms, ask questions, and agree once. You don’t need to say ‘yes’ every time you turn on the heat.

Medical providers don’t need to check in with you every 10 minutes during surgery. They don’t need to ask, ‘Still okay with this?’ while stitching a wound. That’s not how medicine works. It’s dangerous. It’s impractical. And it’s not required by law.

Even in emergencies, the system has safeguards. If you’re unconscious and have no advance directive, doctors can act under the ‘emergency exception’-they can treat you to save your life or prevent serious harm. No signature needed. No ‘yes’ required. The law assumes you’d want to live.

What You Should Do Instead

Stop worrying about whether your doctor needs your verbal ‘yes.’ Start worrying about whether your family knows what you’d want.

Here’s what actually matters:

1. Write an advance directive. It’s free. You can do it online through your state’s health department or with a simple form from your doctor’s office. No lawyer needed.
2. Name a healthcare proxy. Pick one person you trust-your partner, sibling, or close friend-and make sure they know your values. Not just your wishes, but your reasons.
3. Talk about it. Have the conversation with your proxy, your family, and your doctor. Don’t wait for a crisis. Most people only think about this after someone they love is already in the hospital.
4. Keep a copy. Give one to your proxy, one to your doctor, and keep one in your phone or wallet. Hospitals will look for it.

Some states, like California, even let you store your directive in the state’s registry. That way, any ER in the state can access it with your ID.

What Happens If You Don’t Plan

If you don’t have an advance directive and you lose capacity, the law steps in-but it’s messy. In most states, your spouse, adult children, or parents get first priority to decide for you. But if they disagree? The hospital may have to bring in a court-appointed guardian. That can take weeks. And during that time, you might get treatments you never wanted-or miss out on ones you would have chosen.

There’s no legal requirement for a doctor to get ‘affirmative consent’ from a family member to remove a ventilator. There’s no law saying a daughter must say ‘yes’ out loud before stopping dialysis. The law says: what would your parent have wanted? And if no one knows? Then the hospital follows ‘best interest’ standards-which often means doing less, not more.

The Bottom Line

Affirmative consent laws are about preventing sexual violence. They have nothing to do with medical care. Trying to apply them to hospitals doesn’t protect patients-it confuses them.

What protects you in medicine isn’t a loud ‘yes.’ It’s a written plan. It’s a conversation you had before you needed help. It’s knowing your values are clear to the people who will speak for you.

If you’re reading this because you’re worried about who makes decisions for you-or for someone you love-don’t wait. Start today. Write it down. Talk about it. That’s the only consent that really matters in medicine.