By Brady Scheiner
Informed consent in medical practice, not to be confused with informed consent in sexual activity, is the process by which patients are educated about the possible risks of and alternatives to a healthcare intervention before consenting to receive that intervention. In the United States, this is done to satisfy the legal (and moral) obligations of the physician to ensure a patient understands the consequences of a procedure or intervention. Although informed consent is generally required to be received from the patient themselves, there are scenarios in which this would not be the case. More specifically, informed consent will not be required from the patient if the patient is unable to give it; a patient would be unable to give informed consent if they are a minor (in which case their legal guardians would), if they are severely mentally handicapped (in which case their healthcare power of attorney would), or if they are unconscious. In the case that they are unconscious and will die without prompt treatment, the need for informed consent is waived entirely, unless otherwise stated in their medical file.
There is a great deal of controversy surrounding informed consent. For example, if a doctor were to be performing an unrelated surgery on a patient who he then found to have cancerous tissue, should he be allowed, by law, to do what he feels is necessary to remove it immediately? If you think he should, then would your answer change knowing that this may even include womb or testicle removal, preventing the patient from reproducing without ever giving them options in the matter? Some of you may believe that physicians know best, so it should be done right away, no matter what, but others of you may believe that physicians should always provide wholly encapsulating information on every single medical proposal, no matter how big or small. Now, let’s say the doctor did remove the tissue; If determining this case purely based on the doctrine of informed consent, then the doctor acted negligently because he did not inform the patient about the risks of or alternatives to the cancer’s surgical removal, but it’s not always this clear.
There is even more discord surrounding the “standard of care” that should be followed when informed consent is given. The standard is always intended for the benefit of the patient; however, states generally have two varying approaches to this. The first is the “patient standard”, which holds that the legal standard for determining informed consent cases is what a “reasonable patient…would expect to be told prior to making a decision about treatment” (Studdert 104). In contrast, the “professional standard” holds that the legal standard is “testimony by medical experts about which risks and alternatives physicians customarily convey” in analogous situations (Studdert 105). The conflict between these two approaches is reflected in the state laws surrounding which standard must be followed. In 25 states and the District of Columbia, the patient standard is codified in law, whereas the professional standard is practiced in 23 states (Studdert 105). The leftover two states follow a hybrid of the two approaches (Studdert 105).
To find out the specific standard for informed consent laws in your state, check out the figure below from “Geographic Variation in Informed Consent Law: Two Standards for Disclosure of Treatment Risks” and look for your state!
Citations
“Informed Consent.” AMA Principles of Medical Ethics, American Medical
Association, www.ama-assn.org/delivering-care/ethics/informed-consent.
Shah, Parth. “Informed Consent.” StatPearls [Internet]., U.S. National
Library of Medicine, 22 Aug. 2020,
dy.
Studdert, David M., et al. “Geographic Variation in Informed Consent Law:
Two Standards for Disclosure of Treatment Risks.” Journal of
Empirical Legal Studies, vol. 4, no. 1, 2007, pp. 103–124.,
