Affirmative Consent Laws: What They Really Mean for Medical Decisions

There’s a lot of confusion online about affirmative consent and how it applies to medical care. You might have heard the term in the context of campus policies or #MeToo campaigns and assumed it also governs who can make decisions for you in the hospital. That’s not true. And mixing these two ideas can lead to dangerous misunderstandings-especially when someone is sick, unconscious, or unable to speak for themselves.

What affirmative consent actually means

Affirmative consent laws were never designed for medicine. They were created to change how we think about sexual activity. The idea is simple: no means no isn’t enough. You need a clear, enthusiastic, ongoing “yes.” That’s the standard in places like California, New York, and Colorado. It’s about ensuring that every step in a sexual encounter is agreed to, out loud or through clear actions, and that either person can stop at any time.

These laws came out of the 2010s, mostly pushed by universities and state legislatures after rising awareness of sexual assault on campuses. California’s Education Code Section 67386, passed in 2014, says consent must be “affirmative, conscious, and voluntary.” That’s it. That’s the whole scope. It applies to relationships between students, staff, and campus visitors. It doesn’t touch medical treatment.

Medical consent works completely differently

When you walk into a doctor’s office, the legal standard isn’t affirmative consent. It’s informed consent. That means your doctor has to explain:

• What’s wrong with you
• What the treatment does
• What the risks and benefits are
• What other options exist
• What happens if you say no

Then you say yes-or no. You don’t have to say “yes” out loud every five minutes. You don’t need to nod, smile, or sign a new form for each step. You just need to understand enough to make a decision. This standard goes back to a 1914 court case, Schloendorff v. Society of New York Hospital, where the court ruled that every person has the right to decide what happens to their body.

What happens when you can’t speak for yourself?

This is where the confusion really starts. People hear “consent” and think it means someone else has to get your verbal okay before acting. But if you’re in a coma, have advanced dementia, or are a child, you can’t give consent. So what happens?

The answer is substituted judgment. This isn’t about getting your permission-it’s about figuring out what you would have wanted. A family member or legal guardian steps in, not to decide what’s best for you, but to answer: “What would they have chosen if they could speak?”

In California, Health and Safety Code Section 7185 requires surrogates to use this standard. If you’ve written an advance directive-a living will or healthcare power of attorney-that’s the gold standard. If not, the doctor talks to your closest family and asks: “Did they ever say they didn’t want machines? Did they mention religion or quality of life?”

This isn’t about enthusiasm. It’s about memory, values, and past statements. It’s not a “yes” you give today. It’s a decision based on who you’ve been.

Why mixing these ideas is dangerous

Some hospitals have tried to apply “affirmative consent” language to medical settings because it sounds ethical. But it doesn’t work. Imagine a patient in the ER after a car crash. They’re unconscious. Their daughter arrives. The doctor says, “Do you give affirmative consent to intubate?”

The daughter, terrified and grieving, says nothing. The doctor waits. Silence. No nod. No “yes.” So they don’t intubate. The patient dies.

That’s not ethics. That’s legal chaos. In emergencies, there’s no time for ongoing verbal confirmation. The law allows doctors to act under implied consent in life-threatening situations. But if you start treating medical decisions like sexual encounters, you create paralysis.

A 2023 advisory from the Federation of State Medical Boards warned exactly this: applying sexual consent standards to medicine “creates unnecessary barriers to urgent care and misunderstands the legal foundations of medical consent.”

Who can legally make medical decisions for you?

It depends on your state, but generally, here’s the order:

1. Someone you named in an advance directive (healthcare proxy)
2. Spouse or domestic partner
3. Adult children
4. Parents
5. Siblings
6. Close friend (in some states)

You can’t just assume your spouse or sibling has the right to decide. You have to name them. That’s why filling out an advance directive matters-even if you’re young and healthy. It’s not about death. It’s about control.

In California, minors as young as 12 can consent to treatment for STDs, HIV, or substance abuse. That’s not affirmative consent. That’s recognizing autonomy in specific cases where the law says a teenager can make their own health choices.

What you should do right now

You don’t need to understand every legal term. But you do need to take two simple steps:

• Fill out a healthcare power of attorney. Name one person you trust to speak for you if you can’t. Don’t wait until you’re sick.
• Talk to that person. Tell them what matters to you: Do you want to be kept alive on machines? What’s your view on pain management? Have you ever said, “I don’t want to be a burden”? Write those things down. Give them a copy.

This isn’t about legal paperwork. It’s about making sure your voice is heard-even when you’re silent.

What’s changing in 2026?

Nothing. The confusion between medical and sexual consent is still widespread, but the law hasn’t changed. The California Supreme Court ruled in 2023 in Doe v. Smith that affirmative consent laws “apply exclusively to sexual misconduct determinations under Title IX,” not medical care. That decision closed the door on any future attempts to merge the two.

Medical organizations like the American Medical Association have doubled down on separating the two. Their 2023 update to Opinion E-2.225 says clearly: “Physicians should not apply sexual consent standards to medical decision-making processes.”

The truth is, the systems we have for medical consent-though imperfect-are built on 100 years of legal precedent, ethics, and patient rights. Affirmative consent laws are powerful tools for preventing sexual violence. But they’re not tools for saving lives in the ER.

Common misconceptions, cleared up

• Myth: You need to say “yes” again for every medical procedure.
  Truth: One informed consent covers the whole plan. You don’t re-consent for each needle or scan.
• Myth: Family members can override your wishes if they disagree.
  Truth: If you have an advance directive, your wishes win-even if your kids think you’re being stubborn.
• Myth: Affirmative consent laws apply to all types of consent.
  Truth: They apply to sexual activity only. Period.
• Myth: If you’re unconscious, doctors can do anything.
  Truth: They can only do what’s necessary to save your life. Beyond that, they wait for a surrogate or court order.

Final takeaway

Affirmative consent is a vital tool for preventing sexual violence. But it’s not a tool for medical care. If you want to control what happens to your body when you can’t speak, you need to prepare now. Fill out the forms. Talk to your person. Don’t wait for a crisis to figure it out. Your future self will thank you.