Chapter 6: Rights, Truth and Consent

Section 3. Presentation of Issues: INFORMED CONSENT

If humans are autonomous moral agents who make decisions freely and are held morally responsible for the consequences of their actions then in order to make the decision the agent needs to have accurate information concerning the situation and not be under coercion of any form.  Hence, there is a principle of Informed Consent in both moral theory and in the legal statutes.

Functions of the principle of Informed Consent:

  1. Protects individual autonomy
  2. Protects the patientís status as a human being
  3. Avoids fraud and duress
  4. Encourages doctors to carefully consider their decisions
  5. Fosters rational decision making by the patient.
  6. Involves the public generally in medicine.

A Health Care Provider must reveal to the recipient of care what is in that person's best interests to know. The recipient has a right to self decision and this shapes the Health Care Provider's duty to reveal the information. This might not be the customary practice for many HCP's.  The HCP must provide all material risks. It is a material risk if a reasonable person in the recipient's condition would likely attach significance to the risk.

READ: The Origins of Informed Consent

Terms as declared by Spotswood W. Robinson in Canterbury vs Spence allow for two (2) exceptions:

1. The recipient is unconscious and then there is no need for consent, particularly in an emergency situation

2. Disclosure is contra indicated from a medical point of view because the recipient would become so ill or emotionally distraught as to:

  • a. foreclose rational decision making
  • b. complicate or hinder treatment
  • c. cause psychological damage

However, the HCP must respond to sound medical judgment. The privilege to withhold information is carefully circumscribed . The privilege is limited and does not permit paternalism.

So for informed consent a person must have the following:

  • Competency
  • Relevant Information
  • Freedom to make the Decision

Concerning competency there are important considerations and issues:

James Drane, Competency to Give an Informed Consent: A Model for Making Clinical Assessments, JAMA: Journal of the American Medical Association, August 17, 1984, Vol. 252, No. 7, pp. 925-927.

READ: summary at http://www.cariboo.bc.ca/ae/php/phil/mclaughl/students/phil433/drane1.htm

READ: summary at http://www.cariboo.bc.ca/ae/php/phil/mclaughl/students/phil433/drane2.htm

READ: summary at http://www.cariboo.bc.ca/ae/php/phil/mclaughl/students/phil433/drane3.htm

Freedman, Benjamin.  A moral theory of informed consent. Hastings Center Report , August, 1975, pp.149-157.

READ: summary at http://www.cariboo.bc.ca/ae/php/phil/mclaughl/students/phil433/freedman.html

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Important questions concerning informed consent:

For answers READ: http://depts.washington.edu/bioethx/topics/consent.html

VIDEOS:

RIGHTS TRUTH AND CONSENT

Informed Consent - History of Informed Consent

 http://www.youtube.com/watch?v=h16Ujzw9VtA  

 Informed Consent - The Need For Informed Consent

 http://www.youtube.com/watch?v=5MSzRD7EDc0&feature=channel  

Informed Consent to Medical Treatment: Medical Malpractice

http://www.youtube.com/watch?v=lrEsqYD0cLk&feature=related  

Clinical Trial - Informed Consent

http://www.youtube.com/watch?v=iic3y7CGZF0&feature=related

Patient's Advocate Interviews Schizophrenic Patient http://www.youtube.com/user/overtree#p/u/6/KT1JAHPGZts

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Proxy Consent

Kluge, Eike-Henner W.  After "Eve": whither proxy ;decision-making? Canadian Journal Association Journal, (137), October 15,1987,  p.715-720.

READ: summary at:   http://www.cariboo.bc.ca/ae/php/phil/mclaughl/students/phil433/kluge.html

What of people who may not be able to choose?

Children and adults with deficiencies who:

  • lack knowledge
  • lack capacity to reason
  • lack ability to carry out decisions

Can such people be interfered with and decisions made for them in order to bring about what they would choose if they were fully rational and functional?

How do we decide what a rational person would or should do? This is a particularly difficult task when there are conflicting goods or alternatives.

Parents and Children

Parents are expected to make the decisions in the best interest of the children.  Parents must not be: psychotic, incompetent, depressed or negligent.  The State protects the interest of the children (citizens) from harm, even from parents.  However , 44 states have made exceptions to the laws against child abuse and neglect in the case of those parents who act out of sincere religious beliefs.

Questions On Parental Consent:

  • Who has the authority to make decisions for children?
  • What is the basis for granting medical decision making authority to parents?
  • When can parental authority to make medical decisions for their children be challenged?
  • What if parents are unavailable and a child needs medical treatment?
  • Should children be involved in medical decisions even though their parents have final authority to make those decisions?
  • What happens when an older child disagrees with her parents about a medical treatment?
  • Under what circumstances can minors make medical decisions for themselves?

Answers: http://depts.washington.edu/bioethx/topics/parent.html

History of the Massachusetts Religious Exemption Law

http://www.masskids.org/dbre/dbre_6.html

Cases of Childhood Deaths Due to Parental Religious Objections to Necessary Medical Care

READ: http://www.masskids.org/jcl/jcl_6appendix.html?FACTNet

Religious Freedom: http://www.freedomforum.org/packages/first/curricula/educationforfreedom/L06main.htm

Victims of Religion Based Medical Neglect

http://www.childrenshealthcare.org/victims.htm

Listing of Religious Groups that Promote Faith Healing and Cases:

READ: http://www.religioustolerance.org/medical2.htm

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Pregnancy and Autonomy : Conflict of Rights? Woman vs fetus?

Can a pregnant woman be forced to stop doing something or forced to do something without her consent?  Can the woman be coerced based upon concern for the welfare or the fetus or developing child within her?  What are the possible relationships of the pregnant woman to the fetus?

  • a. the fetus is not a person therefore there is no conflict
  • b. the fetus will develop into a person ( potential) and there is a conflict

There are those who maintain that actions have consequences and the pregnant woman accepts those consequences.  The issue is just how far can a state go in prescribing the behavior of a pregnant woman? Should we establish a basic minimum or an obtainable ideal as the limit?

King, Patricia. (1986). Should mom be constrained in the best interests of the fetus? Nova Law Review, 13(2), pp. 343-348.  

READ: Summary and Critique of " Should mom be constrained in the best interests of the fetus?"

READ: South Carolina- Cornelia Whinter Case: http://www.aclu.org/news/w071596a.html

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Questions:

  • What accounts for the rising awareness of maternal-fetal conflict?
  • What happens when medical therapy is indicated for one patient, yet contraindicated for the other?
  • When does a fetus or a newborn become a person?
  • People have rights. Does a fetus have rights?
  • What if maternal decisions seem to be based on unusual beliefs?
  • What about obtaining court orders to force pregnant women to comply?

Answers at: http://depts.washington.edu/bioethx/topics/matern.html

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PRENATAL RIGHTS: http://dmoz.org/Society/Issues/Human_Rights_and_Liberties/Prenatal_Rights/

Proceed to the presentation of issues section of the chapter by clicking here> return.

© Copyright Philip A. Pecorino 2002. All Rights reserved.

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