Historically, codes of medical ethics as ancient as that of Hippocrates cautioned physicians not to share information about patients’ conditions with patients. This has gradually changed in the last century, in no small part as a result of judicial pressure to do so, primarily in the form of the requirement of informed consent. Informed consent began to develop in the 1950 (though there are clear antecedents as early as the 1880s), came into full bloom in the 1970s, and quickly became a part of the common or statutory law of every state. Despite early resistance, informed consent was eventually wholeheartedly embraced in the medical and medical ethics literature often under the aegis of shared decision making, collaborative decision making, or some similar title.
Physicians’ clinical practice has, however, been far more ambivalent, at best, about informed consent, with many finding it to be nothing more than a bureaucratic or legalistic burden that honors form over substance, ignores the realities of clinical practice, and thus is honored far more in the breach than in the observance.
This seminar will spend some time familiarizing students with the ins and outs of the legal doctrine of informed consent, but will quickly turn to taking a look at the real-world obstacles to implementation of law’s vision of informed consent.
The overall goal of the seminar is a reexamination of the requirement of informed consent. Should it be retained, modified, or replace; if modified, how? and if replaced, with what?