Document Type
Article
Publication Date
Spring 1988
ISSN
0897-6546
Publisher
American Bar Foundation
Language
en-US
Abstract
The doctrine of informed consent' is intended to get physicians to talk to their patients so that patients can make reasonably knowledgeable choices about whether to undergo particular forms of medical care. Although the law has long prohibited treatment without the patient's consent,2 physicians have resisted the idea that treatment decisions ultimately are for the patient to make. Only recently have physicians been willing to disclose information about the benefits and risks of recommended therapies. 3 Even with the best of intentions, however, the discussions that do take place are often far from the law's ideal of reasonable disclosure and informed decision making.
Why has the legal doctrine of informed consent had so little visible effect on medical decision-making in practice? In their new synthesis, A History and Theory of Informed Consent, Ruth R. Faden and Tom L. Beauchamp, in collaboration with Nancy M. P. King, suggest that the law does not really structure physician-patient relationships to achieve the autonomous decision-making that the law seeks to protect. They are undoubtedly correct. Along with Jay Katz, whose The Silent World of Doctor and Patient has become the most widely praised book on the subject in recent years, they believe that physicians' failure to communicate has deprived patients of an important measure of their autonomy, and that the impetus for improvement must come from an ethical understanding of what it means to respect the dignity of persons.
Neither of these works is intended as an exegesis of the distinction between principles of law and principles of ethics governing informed consent. Yet the difference looms large throughout both because the authors endeavor to determine how the process should work. They do so in strikingly different ways for different purposes, but both accounts raise fundamental questions about what informed consent is and what it should be.
Since the 1960s, the common law of informed consent has stressed the need for physicians to provide information to patients to enable them to make informed choices. This is the modern formulation of informed consent based squarely on individual self-determination. Judges have portrayed patients as innocently ignorant of the medical facts and uncertainties relevant to decision-making. 5 Physicians therefore are charged with the legal obligation to provide the necessary information. 6 The mere disclosure of information, however, does not ensure that a patient either understands or uses the information to make the best choice for himself.7 Moreover, the courts have granted physicians considerable discretion in determining what a reasonable patient would want to know and, therefore, what to disclose. The cases have been criticized by both the legal and medical professions on both points. Physicians complain of being forced to make disclosures that may have no effect (or an unintended adverse effect) on patient choice.8 Others have criticized the courts for not going far enough to ensure truly intelligent decision-making. 9
As expounded in case law, the modern doctrine of informed consent does not guarantee that patients make autonomous choices; it merely requires that they have the opportunity to do so. The question for the legal profession is whether the law ought to prescribe more or less than this and what ought to be left to professional ethical obligations. It is a question of what kinds of decisions are enforceable, in the sense that the decisionmaker cannot disclaim responsibility for their consequences. Answering such a question requires more than parsing the common law. Ethical principles, the variability of human behavior, and the practical problems of providing medical care all shape our view of what should count as a free choice. All are relevant to determining what physicians and patients should expect of each other. For now, the important thing is to ask the question of what the law can and should do. A thoughtful examination may help mold the doctrine of informed consent into a postmodern configuration, a clearer and more effective means of promoting patient autonomy.
In this essay, I shall review how these authors have contributed to thinking about such questions and then venture into waters they have left uncharted. In the first section below I focus on the history of physicians' attitudes toward openness with patients. The history is illuminating because it reveals both the absence of attention to patient autonomy and the reasons that physicians feel no strong professional commitment to seek a patient's authorization of treatment. In the second section I discuss ideal forms of informed consent and the physician-patient relationship as described by the authors and how they vary from the requirements of law. In the final section, I comment on the difficulty of trying to enforce the ideal by the application of law, and suggest both the value and limits of legal principles and new opportunities for professional ethical obligations.
Recommended Citation
Wendy K. Mariner,
Informed Consent in the Post-Modern Era
,
in
13
Law & Social Inquiry
385
(1988).
Available at:
https://doi.org/https://doi.org/10.1111/j.1747-4469.1988.tb01122.x
