Informed Consent Revisited

1996 ◽  
Vol 5 (2) ◽  
pp. 214-220 ◽  
Author(s):  
Amnon Goldworth
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Clinical Setting ◽  
Relevant Information ◽  
Best Interests ◽  
Limited Capacity ◽  
Legal Requirement ◽  
Good Level ◽  
Level Of Understanding ◽  
The Way

More than three decades after its introduction as a legal requirement for medical treatment in the clinical setting, informed consent continues to be viewed with skepticism as to its need or effectiveness. Some maintain that it is not required because the ordinary individual believes that doctors can be trusted to behave In the best interests of their patients. This issue will be discussed in a later portion of this article. Others are persuaded that informed consent is an unattainable ideal given the limited capacity of the ordinary individual to understand the relevant information. This view is supported by studies intended to show that satisfactory understanding on the part of patients cannot be achieved. In rebuttal, Apple-baum, Lidz, and Meisel observed that:Such statements are easily refuted by reference to studies of situations in which reasonable comprehension actually has been achieved. A sounder interpretation of all these studies might be that patients and subjects can attain a good level of understanding in many cases, but that several factors — including the manner in which disclosure is made as well as patients' limitations — may get in the way.

scholarly journals Think of the Children: Liability for Non-Disclosure of Information Post-Montgomery

2019 ◽  
Vol 28 (2) ◽  
pp. 270-292
Author(s):  
Emma Cave ◽  
Craig Purshouse
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Relevant Information ◽  
Tort Law ◽  
Treatment Decisions ◽  
Best Interests ◽  
Health Board ◽  
The Supreme Court ◽  
Sound Mind ◽  
Consent To Medical Treatment

Abstract In 2015, the Supreme Court in Montgomery v Lanarkshire Health Board handed down a landmark decision on informed consent to medical treatment, heralding a legal shift to a more patient-centred approach. Montgomery, and the extensive commentary that has followed, focuses on ‘adult persons of sound mind’. Cave and Purshouse consider the potential claims that may flow from a failure to adequately inform children. They argue that the relevance of the best interests test blurs the boundaries between negligence and battery. Limitations on children’s rights to make treatment decisions for themselves impact on their potential to claim in negligence for non-disclosure and, conversely, enhance the potential relevance of the tort of battery. In paediatric cases, Montgomery raises expectations that the law is currently ill-equipped to satisfy. Tort law provides a legal incentive to disclose relevant information to children but limits the availability of a remedy.

Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion

1987 ◽  
Vol 12 (1) ◽  
pp. 55-97 ◽  
Author(s):  
Fran Carnerie
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Clinical Setting ◽  
Patient Relationship ◽  
Physician Patient Relationship ◽  
Catastrophic Illness ◽  
Physician Patient ◽  
Emotional Impairment

AbstractMany individuals develop a temporary state of cognitive and emotional impairment after being diagnosed with catastrophic illness. Thus, when crucial decisions about medical treatment are required, they are unable to assimilate information; or worse, the legal need to be informed can rival a psychological desire to not be informed. The Canadian informed consent doctrine is unresponsive to crisis and clinically impracticable, and so paradoxically compromises the integrity and autonomy it was designed to protect. Many aspects of the physician-patient relationship and clinical setting also undermine the philosophical values enshrined in this doctrine. This further jeopardizes the individual's integrity. The Article explores proposals for change such as delaying the informing and consenting, improving the concept of consent, and improving the role of the physician.

scholarly journals Assault and Battery, or Legitimate Treatment?

Gesnerus ◽  
2000 ◽  
Vol 57 (3-4) ◽  
pp. 206-221
Author(s):  
Andreas-Holger Maehle
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Physical Injury ◽  
Medical Interventions ◽  
German Speaking ◽  
Legal Justification ◽  
Assault And Battery ◽  
The Way

In response to cases of high handed medical interventions and treatments, a debate on the legal justification of operations and the relevance of patients’ consent developed among German-speaking jurists in the 1890s. The view that surgery was objectively physical injury or battery, which went merely unpunished through the patient’s consent, was highly contested among legal experts and firmly rejected by doctors. Various proposals to justify indicated medical treatment without consent were discussed. German jurisdiction, however, endorsed the battery theory of medical interventions and thus prepared the way for the concept of informed consent in medicine.

scholarly journals Informed consent in children and adolescents

1997 ◽  
Vol 2 (5) ◽  
pp. 329-333 ◽  
Author(s):  
Wendy J Morton ◽  
Michael Westwood
Keyword(s):  
Health Care ◽  
Informed Consent ◽  
Medical Treatment ◽  
Care Provider ◽  
Common Law ◽  
Legal Action ◽  
The Common ◽  
Level Of Understanding ◽  
Consent To Medical Treatment ◽  
A Minor

Abstract Confusion persists about when a minor can give informed consent to medical treatment. Physicians may be hesitant to treat minors, even as adolescents, without first obtaining parental or guardian consent for fear of being sued for battery or negligence. However, the common law in Canada is clear that a minor can give informed consent to therapeutic medical treatment, provided heorshe can understand the information regarding the proposed treatment and can appreciate the attendant risks and possible consequences. Courts have accepted that there is no precise age at which a minor can be presumed to have the capacity to give informed consent. Each minor must be individually assessed to determine whether he or she possesses the requisite maturity and level of understanding to comprehend the nature, benefits and risks of the proposed treatment. The responsibility for determining a minor's capacity rests with the physician or another health care provider who is seeking to obtain the informed consent. In the event that legal action is taken against the physician on the grounds the minor lacked the capacity to give informed consent, the court must be satisfied that the minor did have sufficient capacity. Examples of cases where the physician was sued by either the minor or the minor's parents are included. In addition, an overview of existing provincial legislation dealing with minors and informed consent is provided.

Of Love and Laetrile: Medical Decision Making in a Child's Best Interests

1979 ◽  
Vol 5 (3) ◽  
pp. 269-294
Author(s):  
Eve T. Horwitz
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Burden Of Proof ◽  
State Intervention ◽  
Convincing Evidence ◽  
State Agency ◽  
Best Interests ◽  
Medical Decision ◽  
Appropriate Treatment ◽  
Life Threatening

AbstractTwo recent cases have raised important questions concerning the appropriateness of state intervention in parental choices of unorthodox medical treatment for children with life-threatening conditions. This Note first discusses whether, and if so, when, state intervention in a child's treatment selection by its parents is appropriate, and then analyzes the tests a court should apply in deciding upon an appropriate treatment. The Note recommends a decision-making approach that requires the appropriate state agency to prove, by clear and convincing evidence, that the parents' choice of medical treatment either is directly or is indirectly harming their child. Under this approach, if the state meets its burden of proof the court then must apply the ‘best interests’ test, rather than the ‘substituted judgment’ test, to choose an appropriate medical treatment for the child.

scholarly journals ‘Our legal responsibility…to intervene on behalf of the child’: Recognising public responsibilities for the medical treatment of children

2021 ◽  
Vol 21 (1) ◽  
pp. 19-41
Author(s):  
Jo Bridgeman
Keyword(s):  
Medical Treatment ◽  
Social Services ◽  
Local Authority ◽  
The State ◽  
Parental Authority ◽  
Best Interests ◽  
Legal Responsibility ◽  
Local Authorities ◽  
Professional Responsibilities ◽  
Seriously Ill

This article argues for recognition of public responsibilities to protect the welfare of children with respect to decisions affecting their health and medical treatment. As the quote in the title of this article, from David Plank, the Director of Social Services responsible for bringing the case of Baby Alexandra before the courts, identifies, early cases concerning children’s medical treatment were brought by local authorities to determine responsibilities to protect the welfare of children. In cases such as Re B (1981), Re J (1990) and Re W (1992), the court was asked not only to determine the child’s best interests but also to clarify the duties of the local authority, Trust, court and child’s parents to the child. The respective duties established apply to all involved in cases brought before the courts on the question of a child’s future medical treatment, whether or not the child is in the care of the state. Recent cases concerning the medical treatment of seriously ill children have involved claims of parental authority to determine the care of their child. To the contrary, this article argues that court involvement is required when parents are disagreed with the child’s treating doctors over the child’s medical treatment because of public as well as parental and professional responsibilities for the welfare of all children.

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

2020 ◽  
Vol 22 (3) ◽  
pp. 165-173
Author(s):  
Owen P. O'Sullivan
Keyword(s):  
Medical Treatment ◽  
Clinical Decision ◽  
Case Law ◽  
Decision Makers ◽  
Best Interests ◽  
Content Type ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

Certified Patient Decision Aids: Solving Persistent Problems with Informed Consent Law

2017 ◽  
Vol 45 (1) ◽  
pp. 12-40 ◽  
Author(s):  
Thaddeus Mason Pope
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Medical Treatment ◽  
Shared Decision Making ◽  
Decision Aids ◽  
Shared Decision ◽  
Legal Doctrine ◽  
Patient Decision Aids ◽  
Patient Decision ◽  
Decision Making Processes

The legal doctrine of informed consent has overwhelmingly failed to assure that the medical treatment patients get is the treatment patients want. This Article describes and defends an ongoing shift toward shared decision making processes incorporating the use of certified patient decision aids.

scholarly journals Risk of Lyme disease development after a tick bite

2010 ◽  
Vol 67 (5) ◽  
pp. 369-374 ◽  
Author(s):  
Jovan Mladenovic ◽  
Radovan Cekanac ◽  
Novica Stajkovic ◽  
Milena Krstic
Keyword(s):  
Lyme Disease ◽  
Absolute Risk ◽  
Clinical Manifestations ◽  
Infectious Agent ◽  
Epidemiological Data ◽  
Relevant Information ◽  
Tick Bite ◽  
Healthcare Personnel ◽  
Tick Attachment ◽  
The Way

Background/Aim. Despite numerous research of Lyme disease (LD), there are still many concerns about environmental of infectious agent of LD, as well as its prophylaxis, diagnosis and treatment. The aim of this work was to determine the risk of LD in relation to the way of removing ticks and duration of tick attachment. Methods. In the period from 2000 to 2007 a prospective study was conducted including persons with tick bite referred to the Institute of Epidemiology, Military Medical Academy, and followed for the occurrence of early Lyme disease up to six months after a tick bite. Epidemiological questionnaire was used to collect relevant information about the place and time of tick bites, the way of a removing tick, duration of tick attachment, remnants of a tick left in the skin (parts of the mouth device) and the signs of clinical manifestations of LD. Duration of tick attachment was determined on the basis of size of engorged tick and epidemiological data. Removed ticks were determined by the key of Pomerancev. Professional removing of attached tick was considered to be removing of tick with mechanical means by healthcare personnel. Fisher's exact test, Chi squares test and calculation of the relative risk (RR) were used for data analysis. Results. Of 3 126 patients with tick bite, clinical manifestations of LD were demonstrated in 19 (0.61%). In the group of subjects (n = 829) in which a tick was not removed professionally there were 17 (2.05%) cases with LD, while in the group of respondents (n=2 297) in who a tick was removed professionally there were 2 (0.09%) cases with LD after tick bite (RR, 23.55; p < 0.0001). The disease was most frequent in the group of respondents with incompletely and unprofessionally removed ticks (2.46%). In the groups of patients with unprofessionally but completely removed ticks LD occurred in 0.89%, while in the group of subjects with a tick removed by an expert, but incompletely in 0.78% cases. The disease occurred rarely in the group with a tick removed completely and professionally (0.05%). There was no case of LD in the group of patients with a tick removed within 24 hours. The longer time of exposure after 24 hours, the higher absolute risk of disease was reported. Conclusion. In prevention of Lyme disease it is important to urgent remove a tick, to use a correct procedure of removing and to remove the whole tick without any remnants.

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