Informed Consent: From the Ambivalence of Arato to the Thunder of Thor

Article excerpt

The law of informed consent touches on some of the most fundamental rights and interests of modern society. Ideas of self-preservation, self-determination, and self-fulfillment are jeopardized when consent to a medical procedure is either uninformed, involuntary, or absent. It is thus essential that applicable law be firmly contoured across the country, especially in light of the impending changes in our national health care system. The goals of the doctrine of informed consent, the preservation of patient autonomy and improved decisionmaking, will be furthered by careful designation and delimited standards.

We must note that, valuable as legal standards are, the voice of law does not end the dialogue; it marks its beginning. The legal aspect of informed consent is limited by the very nature of the questions involved in its appropriate application such as are few other areas of the law. For guidance, it is essential that we observe the medical profession and fathom the intricacies of the physician-patient relationship because the law of informed consent, whether established by legislation or case law, dramatically impacts that relationship and the delivery of medical care in the United States. It is this fact that must remain foremost in the minds of all who discuss the proper definition and role of the law and is a primary reason why we must proceed with caution.

This discussion will focus on three areas of informed consent law that have experienced recent growth and are essential to the proper functioning of the doctrine:(1) the methods for determining competency, the proper level of physician disclosure, and the importance of ascertaining the patient's intent. Two recent California Supreme Court decisions, Thor v. Superior Court(2) and Arato v. Avedon,(3) will provide the basis for this analysis and will be relied upon extensively for foundation and perspective.

Historical Background

For hundreds of years, the law has required physicians to obtain the consent of their patients before undertaking a procedure.(4) This early obligation, however, bears only minimal similarity to what we call "informed consent" today.(5) For example, to avoid prosecution for battery, physicians needed only to advise patients of proposed treatment and obtain their consent.(6) This requirement still exists, and it constituted the physician's sole obligation in some jurisdictions until quite recently.(7) Today, more comprehensive information relating risks, benefits, and available alternatives, including no treatment, is required.(8) In response, two competing approaches have emerged, each based on analytically different reasonableness standards. One requires a physician to disclose whatever information a reasonable patient would find material;(9) the other requires disclosure of whatever information a reasonable medical practitioner would provide.(10) The national trend, and the law in California, is to define informed consent from the patient's point of view,(11) and that is the approach presented here. Physician-Patient Disclosure and the Judiciary

As informed consent law has developed, one thing that has become vividly clear is the imprudence and generally harmful result of excessive judicial meddling with the delicate physician-patient relationship.(12) Some states have closely circumscribed the information a physician must provide through various statutory compilations,(13) each necessarily requiring a degree of interpretation and application by the judiciary. However, specific rules of action are not appropriate beyond a certain point. The issue of whether a specific or a more abstract formulation of a physician's duty should be utilized was faced in Arato v. Avedon.(14)

In Arato, physicians told a patient with pancreatic cancer that the disease was nearly always fatal but did not give information concerning his life expectancy or mortality statistics. In a series of more than seventy visits to his oncologists, neither the patient nor his wife ever asked for information concerning life expectancy. …