Critical Approaches to the Law of Informed Consent
A number of goals have been posited for the legal doctrine of informed consent. One author, for example, highlights four goals: “1) an ethical goal, in which the law promotes patient autonomy; 2) a decision making goal, in which the law promotes the ability of patients to make medical decisions; 3) a regulatory goal, in which the law attempts to control physicians’ disclosure practices; and 4) a compensatory goal, in which the common law functions as a mechanism to provide monetary compensation for injuries” (1). Another author posits six goals: “1) promoting individual autonomy; 2) respecting human dignity; 3) encouraging professional self-scrutiny; 4) promoting rational decisionmaking; 5) avoiding deceit and coercion; and 6) educating the public” (2). According to critics, the result has been a doctrine and a set of practices that compromise all values and satisfy none in their entirety (1). But commentators who have analyzed the law and practice of informed consent have each generally represented one point of view to the exclusion of others. The resulting debate over informed consent among healthcare practitioners, legal experts, and ethicists should come as no surprise. As long as one relies on a single perspective, it is remarkably easy to find critical things to say about informed consent. Those who would elevate any single value above all others, and steadfastly resist compromise, usually can offer a powerful, even devastating, analysis of the current state of affairs. In this chapter we focus on three critiques—a perspective concerned with promoting individual autonomy, an approach that emphasizes the value of health, and a perspective that places primary emphasis on encouraging discourse and interaction between caregivers and patients—and assess their validity from a perspective that recognizes that the doctrine of informed consent must accommodate a number of competing interests and values. The most trenchant criticism of the state of informed consent law today focuses on the discrepancies between the goals highlighted by the ethical theories of informed consent—primarily, the enhancement of individual autonomy in making medical decisions—and the practical effects of the current system.