In 1972, Canterbury v. Spence changed American health law, and with it, the patient-physician relationship. Some ethicists cite this as the beginning of modern medical ethics. Before a patient agreed to a surgical procedure, he was to be informed about its risks and benefits. Failure to do so was negligence. Part III of that appellate court decision gives a concise history explaining why the judges did not consider their decision revolutionary. That, however, wasn’t the way doctors experienced it. A decade earlier, arguments had been advanced justifying why it was better not to tell a patient he had cancer. Not all physicians agreed with that practice, labeled therapeutic privilege. But after Canterbury, such paternalism was no longer acceptable (with extremely rare exceptions).
Explore This IssueACEP News: Vol 30 – No 08 – August 2011
“The root premise is the concept, fundamental in American jurisprudence, that ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body.’ … True consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible.”
As outlined by that court, informed consent is not a form that must be signed. It is the professional duty to communicate information to the patient. That includes overcoming cultural and language barriers, poor health literacy, and denial.
The standard for what is contained in informed consent has evolved. Not every minute risk need be discussed. In many states, the requirements went from a professional standard (What information did other physicians customarily disclose?) to a reasonable person standard (What information would a reasonable patient want to know?) Then, as with many ideas that start out with good intentions, the whole thing spun out of control. The amount of material to be disclosed expanded without bound. There can be too much of a good thing. All too often, modern medical consent forms have become like the End User License Agreement (EULA) I ignore whenever I install computer software. Don’t most people just click the box that says, “I have read and accepted the terms of the EULA,” without actually reading it? As if you really had a choice?