Brock, Informed-Consent Textbook

Chapter i
Informed consent
The two central aims of the requirement that medical care

cannot be given to competent patients without their informed
consent are illustrated by the following two cases, in which
that requirement is violated.
Case 1. Dr. Smith diagnoses his patient, Mrs. Jones, as

having breast cancer. He informs her that a radical mas-
tectomy should be performed as soon as possible,
brushes aside her timid attempts to discuss the matter
further, and with her silent and grudging acquiescence
books her in the hospital for surgery.
Case 2. Mr. Brown is suffering multiple complications

and disability, principally from advanced diabetes and
renal failure. He has had both legs amputated above the
knee and is functionally blind. He is not considered a
candidate for a kidney transplant and so faces the ne-
The basic positions, and even some of the language, of this chapter bear a close
relation to parts of Making Health Care Decisions: The Ethical and Legal Implications of
Informed Consent in the Patient-Practitioner Relationship, Volume One: Report, Presi-
dent's Commission for the Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research (Washington, D.C.: U.S. Government Printing Office,
1982). I was a member of the commission staff team that drafted that report, with
special responsibilities for some of the philosophical issues also discussed here.
That report's preparation was truly a team effort and my views on informed consent
are deeply indebted to the other principal commission staff members on that project,
Alexander M. Capron, Joanne Lynn, Marian Osterweis, and Alan J. Weisbard,
though none of them is, of course, responsible for any misuse I may have made
of their good influences.
21
https://doi.org/10.1017/CBO9780511625350.002 Published online by Cambridge University Press

Physicians, patients, and treatment decisions
cessity of dialysis treatments for the rest of his life. He

is mentally alert, has had his medical situation fully ex-
plained to him by his attending physicians, and seems
to understand his situation well. Two weeks ago, he
decided that he wanted no more painful dialysis treat-
ments, knowing that their termination would quickly
lead to his death, and he has remained steadfast in that
decision since. Despite his decision, his physician re-
fuses to stop the dialysis treatments, believing that to
do so would be tantamount to killing his patient.
The importance of informed consent is different in these

two cases, and is perhaps most conspicuous in the absence
of consent having been obtained. In Case i, obtaining valid
consent would require informing the patient not only of her
medical condition but also of the alternatives available for
treating it; ascertaining that the patient is sufficiently com-
petent to understand her situation and make a decision; and
then permitting the patient freely to decide about treatment.
The doctrine of informed consent is an important aspect of
the general norms that structure the physician-patient rela-
tionship. It has relevance to the great majority of cases in
which decisions must be made about treatment, since it re-
quires a mutual process between physician and patient of
informing and discussion (whenever the patient is capable
of discussion), thereby leading to a mutually acceptable treat-
ment decision. The doctrine ought to shape in important
respects the nature of nearly all encounters and decision
making between physicians and patients. It is designed to
provide the opportunity for the patient to become more ac-
tively involved in the ongoing decision-making process than
has often been the case in medicine.
The second case illustrates the special importance of in-
formed consent in a much narrower class of cases. In those
cases in which patients and their physicians are unable to
agree on a course of treatment, the competent patient has
the right to refuse any treatment, even life-sustaining treat-
ment, no matter how strongly the physician or others believe
22

Informed consent
that the treatment should be undertaken. In the crunch, as

it might be put, when disagreement between a physician and
a competent patient is irresolvable, it is the patient who has
final decision-making authority. The authority of the patient
to order a particular treatment, however, is more limited than
the authority to refuse one. Although physicians should be
flexible in making alternatives available to patients, they can-
not be compelled to provide treatments that are outside the
bounds of acceptable professional practice or that violate their
own deeply held moral beliefs. It is the patient's right to
refuse any treatment that is embodied in the informed-
consent doctrine and that is violated by the physician's forced
treatment in Case 2. Because irreconcilable disagreement be-
tween physician and patient is relatively rare, this right sel-
dom will be invoked. Nonetheless, the existence of this right,
even when not invoked, helps shape the physician-patient
relationship. And the focus of the informed-consent doctrine
on the ongoing process of physician-patient communication
and decision making is not, of course, unrelated to the right
to refuse treatment. The ongoing process of informing and
discussion would have less value if the patient's decision
could be ignored, and the right to refuse a particular (or any)
treatment would be less valuable if there were no means of
ensuring the availability of information on which such a re-
fusal reasonably might be based. Together, these require-
ments aim at ensuring that patients can take an active, full
role in the ongoing process of decision making about their
medical care, and that no treatment is undertaken that does
not first meet their approval.
This is not an uncontroversial view of the proper physician-
patient relationship and, more specifically, of the role of pa-
tients in decisions about their health care. There is a long
and strong authoritarian tradition within medicine that de-
nies patients this role. In its more extreme form, this tradition
denies any significant patient participation and leaves the
ultimate choice of treatment solely with the physician. In this
view, patients should be told what is therapeutically useful
for them to know about their condition and treatment, and
23

nothing more. Their role is passively to follow the instruc-

tions of their physicians. Because medical knowledge and
treatment techniques have expanded dramatically in recent
years, this traditional authoritarian relationship might seem
even more necessary today. Patients simply will lack the
knowledge or ability even to understand the information
necessary for sound medical decision making. Thus, it might
seem only sensible that treatment decisions be left to those
with the necessary training, experience, and knowledge to
make them soundly - physicians. And especially since
patients, who at best understand their situation only in-
adequately, may make decisions positively harmful to them-
selves, even to the point of resulting in preventable loss of
life. In this view, the physician's role is the paternalistic one
of directing treatment in the best interests of the patient, and
the patient's role is the largely passive one of following the
prescribed treatment.
The informed-consent doctrine amounts to a rejection of
this traditional authoritarian and paternalistic conception of
the physician-patient relationship. But why should that tra-
ditional conception be rejected, given its long and important
historical role and its seemingly reasonable character? To
answer that question, the values served by the doctrine of
informed consent must be examined. Only then can what is
at stake in its acceptance or rejection be understood. My
concern here will be with the conceptual and moral issues
involved in the informed-consent doctrine, and not with the
details of its development as a legal doctrine.1 The focus will
be on the moral basis and requirements of informed consent.
THE VALUES UNDERLYING INFORMED CONSENT
The informed-consent doctrine serves not only the individual

patient in the physician-patient relationship but society
as well. Its consequences for the patient are fundamental
because the patient is the ultimate recipient of medical
treatment. The informed-consent doctrine serves to promote
the patient's well-being and to respect his or her self-
24

Informed consent
determination. Both the nature of these values, as well as

how the informed-consent doctrine furthers them, must be
spelled out.
Patient well-being
Clearly, the fundamental goal of the physician-patient rela-
tionship is to protect and promote the patient's health. Med-
ical care treats disease and thereby prevents, eliminates, or
ameliorates pain and suffering, disability and premature loss
of life. But given the great complexities and sophisticated
knowledge involved in such treatment, it is not immediately
clear why the patient's health is not best served by vesting
ultimate decision-making authority with the physician.
Whether a person is healthy or diseased, and what will most
effectively treat his or her disease, would seem to be "ob-
jective" matters about which well-trained experts such as
physicians can best decide. Patients, however, are often con-
fused, anxious, and fearful and as a result sometimes make
decisions not in their best interests. They sometimes refuse
clearly beneficial treatment, select treatment less efficacious
than others available, and fail to complete beneficial treat-
ments. Why then is the patient's well-being best promoted
by leaving ultimate decision-making authority with him or
her?
The answer lies in three key points: first, and least im-
portant, "health" is not a fully "objective" matter, invariant
between persons; second, medical criteria alone often do not
fully settle which treatment is correct or best for a given
medical condition, and third, the relative importance or value
of health as compared with other aspects of individual well-
being differs for different people.
In perhaps the great majority of cases what constitutes an
impairment to health is not controversial - major diseases
like cancer or diabetes, fractured limbs, serious infections,
and so forth. Because these diseases can have serious adverse
effects on an individual's normal functioning and even lead
to untimely death, it is largely uncontroversial that they are
25

contrary to a patient's well-being. In a few cases, however,

it is debatable whether a condition that may lead to a medical
intervention represents any impairment to health at all - for
example, an unusually large nose or wrinkled skin for which
corrective surgery is possible. However, there is general
agreement in the great majority of cases about what consti-
tutes impairment to health. If defining health were the only
issue, the case for patient participation in decision making
in order to promote the patient's health would be weak.
More important, in much of medicine, it takes more than
medical facts alone to determine what treatment is "indi-
cated" for a given condition; there often are several accept-
able methods of treatment. A classic example is breast cancer,
which can be treated, among other ways, by radical mastec-
tomy, limited mastectomy, lumpectomy, and radiation.
Many other conditions are similar. Sometimes the choices
vary greatly - for example, between surgical and nonsurgical
treatment of a slipped disk. In other cases, the differences
between alternatives may be small though still significant -
for example, the choice between medications having different
side effects for the treatment of severe headaches. Moreover,
for many conditions, both treatment and nontreatment are
considered acceptable alternatives by medical professionals
- for example, concerning hemorrhoids. Whenever more
than one acceptable alternative exists, the "medical facts"
about which the physician is expert will not determine which
treatment is best for a particular patient.
What compounds the difficulty of selecting between alter-
native treatments is that more than health commonly is at
issue. The choice is not simply what will maximize a patient's
health, but what will best promote his or her overall well-
being. Health, for nearly everyone, is only one value among
many, albeit an important one. People value their health in
part to avoid the evils of pain and unwanted death. But they
value it as well for its prevention of disability and its role in
making possible the pursuit of the many other goals and
activities that they value. People's values and plans of life
vary greatly, as does the importance assigned to health, and
26

Informed consent
particular components of health, in comparison with other

goals and values. The physician's ultimate responsibility is
to use his or her medical skills to serve patients' overall well-
being in this broad sense, to facilitate patients' pursuit of
their plans of life. The choice of medical treatment now can
be seen to be even less "objective," since it depends on which
alternative best fits a patient's overall goals or life plan. For
a given medical condition, appropriate treatments will vary
greatly because people's goals and values themselves vary
greatly. People differ in their tolerance of pain and so, for
example, in whether for a slipped disk they prefer surgery
with the risks of serious disability or prefer more conservative
treatments which may require them to tolerate more pain.
An active person may prefer radiation therapy to surgical
amputation of a cancerous limb, even if radiation has a higher
risk of recurrence of the cancer. Which medical intervention,
if any, best will serve a patient's overall well-being must be
determined in light of that patient's relevant subjective pref-
erences and overall aims and values. That is what did not
happen in Case 1; no attempt was made to determine the
importance to the patient of minimizing the risk of recurrence
of the cancer, of physical disfigurement, and so forth. Fol-
lowing a narrow notion of health in such a case, one that
focuses only on minimizing the risk of recurrence of the
cancer, may not be in accordance with the patient's conception
of her well-being and is not the sole proper end of medicine.
It should now be clear why the traditional authoritarian,
paternalistic conception of the physician-patient relationship
is unacceptable even if the only goal of health care is to
promote the patient's well-being. Sound health care decision
making involves both objective and subjective components,
and both must be taken into account. On the objective side,
there are empirical facts about the nature of the expected
outcomes for the patient of different treatments (including
the alternative of no treatment). These include a determi-
nation of the patient's physical status, including his or her
prognosis and expected condition under alternative treat-
ments. These are factual or objective matters about which
27

the patient's physician typically will be the best judge. There

may often be significant uncertainty concerning these con-
sequences, however, and medical experts will frequently dis-
agree about such factual matters.
The subjective component of decision making involves as-
sessing the relative importance or value to this particular
patient of the features and consequences of the alternative
treatment outcomes. This evaluation of the outcomes, and
of their effects on the patient's well-being, is a subjective
component in the sense that it depends on the patient's goals
and values. These values and goals may be quite different
from the physician's, or from most people's, depending as
they do on the patient's preferences, abilities, and oppor-
tunities. The authoritarian and paternalistic tradition in med-
icine fails adequately to recognize the relevance and
importance of these subjective components. Because the as-
sessment of the effects on a patient's well-being of treatment
alternatives requires a meshing of these objective and sub-
jective components, a process of mutual interaction or shared
decision making is called for, with the physician and patient
each contributing what each is in the best position to know.
Patient self-determination
The nature of self-determination. The other principal value
promoted by the informed-consent doctrine is patient self-
determination. A person's interest in self-determination re-
flects the common desire to make important decisions about
one's life oneself and according to one's own aims and val-
ues. Self-determination involves the capacities of individuals
to form, revise over time, and pursue a plan of life or con-
ception of their good. It is a broad concept applicable at both
the levels of decision and of action. Patients' exercise of self-
determination in the context of health care involves their
deciding which alternative treatment will best promote their
own particular goals and values. As I will discuss later, this
requires that they become informed about the nature and
28

Informed consent
consequences of alternative treatments. More relevant to the

nature of self-determination, it requires as well that patients
have formed a minimally stable and consistent conception of
their good - that is, a set of goals and values, or plan of life,
by which to evaluate those alternatives. Having a conception
of one's good is more than merely having a set of desires,
instinctual or conditioned. People have a capacity for reflec-
tive self-evaluation, for considering what kinds of desires and
character they want to have. There are, of course, limits to
the extent to which people can change their desires. They
can change their particular tastes in food, but not whether
they have any desire to eat at all. In broad respects, our
natures are fixed and given to us by our biological nature,
but within these broad limits we adopt particular values and
create a unique self. In these ways, we are capable of shaping
our character and of taking responsibility for the kinds of
people we are. Self-determination is the name given here to
that process.
To say that we are capable of self-determination is neither
to deny our interdependence nor that our values are influ-
enced by others. Still, in the evaluation of these influences,
one either makes them one's own and incorporates them into
one's own conception of what is good, or rejects them. Self-
determination does not imply that persons create their own
character and values free of all causal influence from others.
Nor does it require free will in the sense of a will free of
causal determination.
The formation of one's values or conceptions of what is
good is an ongoing process. In the light of new experience,
people revise their values over time. Our interest in taking
responsibility for our life by forming a plan of life extends
as well to being free to revise and develop our values.
People not only can form and revise a conception of their
own good but also can pursue it in action (e.g., in pursuing
a particular medical treatment). Thus, interference with self-
determination can involve interference with people's decid-
ing for themselves, but also interference with their acting
29

as they have decided they want to act. Respecting self-

determination consequently involves avoiding both these in-
terferences, with decision and with action.
Self-determination thus embodies a particular ideal of the
person. That ideal is one of a person freely choosing for him-
or herself, on the basis of personal, reflectively adopted,
values, the alternative action to be taken, and then so acting.
The spirit of this ideal has been eloquently expressed by
Isaiah Berlin:
I wish my life and decision to depend on myself, not on ex-

ternal forces of whatever kind. I wish to be the instrument of
my own, not of other men's acts of will. I wish to be a subject,
not an object; to be moved by reasons, by conscious purposes,
which are my own, not by causes which affect me, as it were,
from outside. I wish to be somebody, not anybody; a doer -
deciding not being decided for, self-directed and not acted
upon by external nature or by other men.... I wish, above
all, to be conscious of myself as a thinking, willing, active
being, bearing responsibility for his choices and able to explain
them by reference to his own ideas and purposes.2
The value of self-determination. What weight should be

given to patient self-determination in health care decision
making? This question is particularly pressing in those cases
in which a patient has decided on a treatment course seem-
ingly contrary to his or her own well-being. Refusals of life-
sustaining therapy are some of the most dramatic examples.
In Case 2 above, it may be plausible to suppose that contin-
ued treatment would not promote the patient's well-being.
But if the patient had not been disabled, was capable of living
a rewarding and satisfying life with long-term dialysis treat-
ment, and then refused it, respecting his self-determination
would appear to require a great sacrifice of his well-being.
Evaluating the importance of the impact of medical treatment
on a patient's life plan provides a framework for weighing
the relative value of medical care for his or her well-being.
It is less obvious what the value of self-determination resides
in, and so what weight it should be given.
30

Informed consent
Self-determination typically is valued both for the good

consequences that result from respecting it (its instrument-
al value) and for its own sake, as part of an ideal of the per-
son (its noninstrumental or intrinsic value). Perhaps the
most important instrumental value of respecting self-
determination lies in its role in promoting a person's good
or well-being. This may seem paradoxical, since in discus-
sions both of informed consent and of paternalism it is com-
mon to pose individual well-being and self-determination as
competing and conflicting values. Indeed, these values some-
times are in conflict, but their relationship is more complex
than is suggested by viewing them simply as opposing val-
ues. I have argued that a person's well-being or good is
largely subjective in that it is largely determined by that per-
son's values and subjective preferences. This is the idea be-
hind the view that the individual is the best judge of his or
her own interests. Respecting a person's self-determination
leaves a person free to pursue and attain those values and
goals. In the exercise of self-determination in purposive, ra-
tional action, we pursue our good as we perceive it. An
important value of self-determination, and in turn an im-
portant reason for respecting it, is then that its exercise com-
monly results in the promotion of the person's good or well-
being. This is not to say that a person can never be mistaken
about where his or her good lies. But, when realized, the
ideal of self-determination (understood to involve the adop-
tion and pursuit of a plan of life) itself usually contributes to
the realization of a person's good or well-being. That this is
an important part of the value of self-determination can be
seen by the fact that when people's choices bear little relation
to their good, for example in cases of severe and wide-
ranging psychotic delusion, the extent to which their exercise
of self-determination is of any value at all, and certainly of
any intrinsic value, is decidedly problematic. Part of the value
of respecting people's self-determination then lies in the way
in which doing so normally contributes to the promotion of
their good. This has implications for those instances when
persons are confused or ill-informed and so make decisions
31

contrary to their own good. In those cases, not only must

protecting their well-being be weighed against respecting
their self-determination, but also in that weighing the value
of self-determination itself is diminished in comparison with
its value in more favorable circumstances.
Although the value of self-determination is then dimin-
ished in such cases, it is not lost. That is because respecting
self-determination often has other instrumental values such
as the avoidance of frustration involved in interfering with
a person's liberty of action, the development of individual
judgment (especially since people often learn best from their
mistakes), the satisfaction people often get from making de-
cisions about their life for themselves, and so forth. The
extent to which these instrumental benefits are present in
any particular case depends on the facts of that case.
The instrumental consequences of self-determination are
not, of course, all good ones. Sometimes persons make
choices that are very harmful to themselves or others, ex-
perience anxiety from choosing for themselves, and so prefer
to have others decide for them. The overall instrumental
effects of any particular exercise of self-determination must
be assessed in context.
The value that many people ascribe to self-determination
rests also on a particular noninstrumental ideal of the person
- we value being, and being recognized by others as, the
kind of person who is capable of determining and taking
responsibility for his or her destiny. This is the ideal of the
person expressed in the quote from Berlin above. It is a non-
instrumental ideal in the sense that it offers an attractive vision
of what human beings can be, independent of the conse-
quences or satisfactions in realizing that vision. There is a
dignity in being self-determining that is lost in even a sat-
isfying subservience. It is this ideal of the person that is
expressed in patients' desires to make significant decisions
about their lives for themselves, even if others (for example,
physicians or computers) might be able to predict how they
would decide and so decide for them, or even if others could
32

Informed consent
decide in a way that would more effectively promote their

health and well-being.
Waiving self-determination. Patients often do not take an

active role in decision making about their own health care.
Often they say to their physicians something like, "You do
whatever you think is best." This may seem contrary to the
account of self-determination as involving people making
significant decisions about their lives for themselves. In turn,
it might be thought not to satisfy the doctrine of informed
consent. Must patients ultimately make health care decisions
themselves, or may they either waive the exercise of self-
determination in particular instances or, perhaps better, ex-
ercise it at a different level of decision? The moral doctrine
of informed consent as interpreted here entitles, but does not
require, a patient to take an active role in decision making
regarding treatment. Patients sometimes have good reasons
for avoiding an active role in particular decisions about their
health care - for example, they are gravely ill and want to
spend what little time remains to them with their families
and others, or they know that thinking about the issue at
hand makes them distraught and depressed, or they know
from past experience that the decisions require technical un-
derstanding of which they are incapable and that trying to
decide only makes them confused. In any of these circum-
stances, and especially if a patient has a physician who knows
him or her well and who is trusted to act in the patient's best
interests, it could be reasonable to let the physician decide.
In these cases, the patient waives his or her right to decide
and transfers that right to another - his or her physician or,
alternatively, a family member. Doing so is compatible with,
and a possible use of, the right to self-determination. What
is necessary is that the patient understand that the decision
is rightfully his or hers to make, and so also his or hers to
transfer to another if the patient so chooses.
By contrast, other patients may leave decisions with their
physician because they do not think they have any business
33

interfering in the physician's professional decision about

treatment - it never occurs to them that the decision is theirs
to make. This would be one plausible rendering of the first
case. And this could not possibly be an exercise of self-
determination, because a person must first believe that he
or she has a right to decide before he or she could intend to
transfer it to another. But when a patient does freely and
intentionally transfer the right to decide to another, this
should be understood as compatible with the right of self-
determination and with informed consent. Nevertheless, two
qualifications are necessary.
One ideal of self-determination is the self-governing per-
son who makes decisions for him- or herself, after personally
weighing alternatives against reflectively adopted values. In
turning over a major health care decision to another, a patient
does not meet that ideal of self-determination. But even that
ideal is a matter of degree and not fully realizable - for ex-
ample, we all rely on much information and accumulated
knowledge that we never could evaluate for ourselves. The
shortages of time and ability (among other factors) that make
such reliance reasonable can also sometimes make turning a
health care decision over to another a reasonable and legit-
imate use of one's right to decide.
The second qualification is that this is one place among
others where the moral analysis of informed consent may
diverge from the doctrine's optimal legal form. The law and
legal policy must be formulated in order to limit well-
intentioned misuse and ill-intentioned abuse of its require-
ments. We want general rules that, when applied by real
persons in a variety of circumstances, will produce the best
results on balance and over a period of time. The worry here
is that permitting true and valid waivings of the right to
decide would inevitably bring in its wake other denials of
that right, along with failures adequately to inform and in-
volve patients who would want to decide for themselves. It
may be that a legal exception to the requirements of informed
consent to permit such waivings should be narrowly limited
because of the other unavoidable and unjustified denials of
34

Informed consent
patients' rights to decide that it would produce. Whether

that is so depends on the particular procedural safeguards
that might be devised to permit such waivings while limit-
ing abuses, and empirical investigation of their actual
effectiveness.
Other values served by informed consent

In the account of informed consent being developed here,
the principal benefits secured by informed consent are ben-
efits for the patient whose consent must be obtained - his
or her well-being and self-determination. However, un-
doubtedly other values are served by informed consent, es-
pecially when it is viewed as an institutionalized social
practice. It fosters general public trust in the medical enter-
prise, especially in the context of medical research in which
serious concerns would otherwise exist about conflicts of
interest between medical researchers and subjects. The re-
quirement that physicians explain and justify treatment rec-
ommendations to the patient may also encourage more
careful scrutiny and review of those recommendations by the
medical profession, thereby resulting in sounder recommen-
dations. There are many other effects of the complex insti-
tutional practice of informed consent. Some of those effects
are often claimed to be negative; for example, patients may
lose some of their trust and faith in the physician's healing
powers when all the risks and uncertainties of treatment
must be detailed to them. An overall assessment of these
institutional benefits and costs is far from clear, and probably
too uncertain to serve as the fundamental moral basis of the
informed-consent doctrine.
Although the values of patient well-being and self-
determination may provide the underlying moral basis for
the doctrine, it is helpful to examine the requirements and
limitations of the doctrine to see how they do so. As I have
already noted, the values of patient well-being and self-
determination may be in conflict when a patient's decision
is contrary to his or her well-being. (Sometimes, as in the
35

case of a comatose patient, a patient may be unable to make

any decision at all.) Only when it is clear how the informed-
consent doctrine deals with such conflicts will we know
whether it adequately secures patient well-being and self-
determination.
THE CONDITIONS FOR VALID INFORMED CONSENT
The requirements of a morally valid consent are commonly

considered to be three: that the person giving consent be
competent; that he or she be informed about the proposed in-
tervention; and that his or her consent be voluntary. Com-
petence is necessary to ensure that a patient has sufficient
decision-making capacities to participate in the decision pro-
cess and to decide responsibly on a course of treatment. The
requirement that the person be informed is to ensure that
the patient has received all relevant information concerning
available alternative treatments (including no treatment), in-
cluding the risks and potential benefits of each, in order to
be able to judge which alternative is most desirable. The
voluntariness condition ensures that the patient's choice does
not result from coercion, duress, undue influence or manip-
ulation, and thus will serve the patient's own perceived good
rather than another's good, or another's view of the patient's
good. Each of these conditions is complex, both in principle
and in practice, and I will examine each in turn. But it is
important to emphasize that together these conditions do
ensure that the patient's consent to treatment is both an
exercise of self-determination and a decision reasonably ex-
pected to promote his or her well-being.
Competence
The requirement that a patient be competent in order to give
binding consent is more complex than first appearances
might suggest. In some cases it is clear whether the patient
is competent. Some people are unable to participate in de-
cision making about their health care to any significant extent
36

Informed consent
at all - the comatose, infants and very young children, and

some of those who are severely mentally disabled or mentally
ill. With these groups, little or no possibility exists of in-
volving them in decision making about their own health care.
Nevertheless, most "normal" adults of average intelligence
are usually able to understand their situation and decide
about their treatment. In between are the difficult cases -
those involving people whose capacities to decide are mar-
ginal and whose ultimate competence to decide requires clar-
ity about the nature and function of the determination of
competence.
The importance of competence. The importance of the de-

termination of competence can be put simply - it separates
those patients whose free and informed decisions must be
accepted as binding from those whose decisions will be set
aside. In other words, the competence determination ulti-
mately establishes when a patient's consent for treatment
must be secured and honored (i.e., in which cases the re-
quirement of informed consent will be operative). And this
suggests that the basic values of patient well-being and self-
determination underlying the informed-consent doctrine it-
self will be at stake in the competence determination, as
indeed they are. Consider the issue in personal terms. Sup-
pose you are concerned both for your own well-being and
your self-determination. When would you want your own
decision about your treatment to be accepted and followed,
and when would you want others empowered to decide for
you? If your decision-making capacities are sound and are
being effectively utilized, your own decision should reflect
your view of your well-being - both values will be promoted
by your deciding. However, if your decision making is se-
riously defective, the likelihood increases that your decision
may cause you serious harm or the loss of important benefits,
and in general not conform to your values. In those circum-
stances, it is reasonable to want protection against one's
choices being honored. A normal concern for our own well-
being requires it. The value of self-determination may be
37

diminished in such circumstances; nevertheless, the values

of deciding for oneself and protecting one's own well-being
are then in conflict. The determination of competence must
secure an acceptable balance between allowing persons to
decide for themselves while protecting them from the harm-
ful consequences of their own choices when their capacities
to decide are seriously limited or defective.
Several points follow from this moral and legal role of
competence judgments. First, competence is always relative
to a particular task - everyone is competent to do some things
and not others. The relevant task here is to make a particular
health care treatment decision. It follows that a person may
be competent to make a given treatment decision, but in-
competent to manage his or her financial affairs or even to
make other treatment decisions. Second, patient decision-
making competence also changes over time, for example,
from the effects of medications or in cases of a cyclic mental
illness like manic depression. Health care professionals can
and should take steps as necessary to enhance patient com-
petence. Third, though the capacities contributing to com-
petence are possessed in varying degrees, the determination
of a person as either competent or incompetent is an all or
nothing judgment. The crucial question will then be how
defective a person's decision making must be in a particular
instance to be deemed incompetent. To understand how to
answer that question, we must examine more closely the
various elements of decision-making competence.
Elements and standards of decision-making competence. In

order to participate in health care decision making and ul-
timately to give valid consent to treatment, an individual
must be able to communicate and understand relevant in-
formation, be able to reason and deliberate about alternative
treatments, and possess values and goals by which to assess
alternatives. The nature of the requirements that a patient
be able to understand information and reason about alter-
natives will be detailed below in discussion of the condition
that consent be informed. Understanding and reasoning are
38

Informed consent
together necessary for a patient to be able to acquire and use

information to reach an appreciation of the consequences of
adopting one or another course of treatment. The patient's
values and goals provide the basis for evaluating which
course of treatment will best serve his or her ends.
Individuals possess these capacities, and exercise them on
particular occasions, in different degrees; or, what amounts
to the same thing, the capacities to understand, reason, and
value can be imperfect or defective in more or less extensive
and important ways. Patients' decision-making competence,
as expressed in the making of a particular treatment decision,
thus could be measured, at least on a relative scale. While
no single, uniform measure of decision-making competence
seems possible, this merely reflects the reality that compe-
tence involves a complex meshing of a patient's various ca-
pacities and skills with the demands of the particular decision
situation. The potential situations are too numerous, and the
potential arrays of patient abilities and inabilities are too var-
ied to permit a single measure. But from the lack of a formal
measure of competence it does not follow, as is often
charged, that determinations of competence and incompet-
ence lack any theoretical foundation and are merely "intui-
tive" in the sense of being inchoate and arbitrary.
This attack on competence determinations as at base in-
tuitive and arbitrary has seemed to some to be reinforced by
the widely varying standards or levels of competence actually
applied by physicians, courts, and others. However, those
differences do not support the "intuitive and arbitrary"
charge. Instead they in part reflect confusions and moral
disagreements regarding the proper level of competence re-
quired and on the issue of paternalism, and in part reflect a
quite proper variation in the standard of competence. Stan-
dards of competence are divided below into three broad
classes, moving from the most minimal to the most stringent
standard, in that the alternatives will classify a progressively
larger proportion of people as incompetent. While the min-
imal standard is insufficiently paternalistic, the strictest stan-
dard is overly paternalistic. The proper standard lies in the
39

middle category and evaluates the process of the patient's

decision making, though even this standard should vary de-
pending on the decision in question.
Ability to express a preference. This standard of competence

considers only whether the patient is able to express a pref-
erence for a particular treatment but does not assess the
presence or nature of the understanding or reasoning un-
derlying that preference, nor the content of the preference
itself. It maximally respects patient self-choice or self-
determination, but it provides no protection at all against the
consequences of defective decision making. For example, this
standard would require accepting an individual's refusal of
life-saving therapy when that refusal was caused by psy-
chotic delusions induced by drugs or mental illness. This
standard is in fact not a standard of competent choice at all,
since any choice whatsoever is deemed competent. It fails to
provide any protection of patient well-being - one of the two
values that the informed-consent doctrine is designed to pro-
mote. It fails to balance the values of self-determination and
well-being, but instead defers entirely to the former, even
under conditions in which the value of self-determination is
drastically diminished.
Standards evaluating the content of the patient's decision. While

the "mere expression of a preference" standard of compe-
tence is insufficiently paternalistic, at the other extreme are
standards that determine competence by evaluating the con-
tent of the patient's choice and that are excessively and
objectionably paternalistic. This is not to deny that it is
commonly disagreement with the content of the physician's
recommendation that will trigger review of the patient's com-
petence in marginal cases. This is natural and reasonable,
given the presumption that the physician's recommendation
is in the patient's interests. But it is to say that merely having
decided on a course of treatment different from the physi-
cian's (or family's) recommendation serves as no basis at all
for a determination of incompetence. Basing determinations
40

Informed consent
of incompetence on the content of the patient's decision inev-

itably requires appeal to some "objective" standard of correct
decisions, independent of whether that standard conforms
to this patient's values and goals. "Correct" decisions in this
view might be those that are rational, or what most would
decide, or what the physician would decide, and so forth.
But it is highly problematic whether any such objective stan-
dard of a patient's good is ultimately defensible. Employing
such a standard will seriously compromise the patient's self-
determination, without requiring evidence that his capacity
for self-determination in the circumstances is deficient. Find-
ing a patient incompetent merely because his treatment
choice does not conform to some external, supposedly ob-
jective, standard fails to respect the patient's capacity to de-
fine his own values. Finally, any such standard in practice
risks substantial abuse and unwarranted denial ("for their
own good") of patients' rights to decide for themselves.
Standards evaluating the nature of the patient's understanding and

reasoning. Any assessment of competence that examines a
patient's actual understanding and use of information in rea-
soning to reach a decision allows protection against serious
harms that may result from defective understanding and mis-
taken reasoning. This standard of competence focuses on the
process of decision making, rather than either on merely
whether the patient has made a choice or on merely the
content of his or her choice. Of course, the first response of
health care professionals or others to apparent misunder-
standings or mistakes of patients should be further discus-
sion with the patient to seek to remove or remedy the
difficulties. Only when such misunderstandings or mistakes
prove irremediable is there any warrant for a finding of in-
competence. The goal under this standard of competence, as
with the informed-consent doctrine generally, is to foster the
patient's full participation in decision making that most
clearly conforms with his or her own values and goals. This
standard seeks a balance between respecting a patient's self-
determination and protecting his or her well-being. When
41

information about the nature of available alternatives and

their consequences for the patient's values and goals has
been understood and appreciated by the patient, then his or
her choice must be honored, even if others such as the phy-
sician would have chosen differently. But when the patient
is clearly unable to understand necessary information and
make a reasoned decision, a standard that focuses on the
nature of the patient's decision-making process allows a pos-
sible finding of incompetence which would justify transfer-
ring the decision to a surrogate.
While the general standard of competence should focus on
the process of the patient's decision making, this still leaves
open two important questions regarding the competence as-
sessment. What level and degree of understanding and ap-
preciation of the full consequences of alternatives are
necessary for competence? How certain must others be that
the patient has not achieved the appropriate level before
finding him or her incompetent? The answer to both ques-
tions is, "It depends." The level of decision-making inca-
pacity that should be required for a finding of incompetence
properly varies depending on the decision in question. There
is no single proper level of decision-making capacity that
should be required for all treatment decisions. This is simply
a consequence of the fact that what is a reasonable balance
between patient self-determination and well-being in setting
that level will depend in part on the consequences of the
patient's choice for his well-being.
The consequences of acting on a patient's choice can range
along a continuum from being substantially better to being
substantially worse than other alternatives in their expected
effects in achieving the goals of preserving life, preventing
injury and disability, and relieving suffering, as against their
risks of harm. The relevant comparison should be with other
available alternatives, and the degree to which the net ben-
efit/risk balance of the alternative chosen appears better or
worse than that for other treatment options. When the net
benefit/risk balance appears substantially to favor the pa-
tient's choice it is reasonable to require only a low/minimal
42

Informed consent
level of decision-making capacity in the choice; there is no

need to compromise his self-determination in order to protect
his well-being. At the other extreme, when the expected
effects for the patient's life and health appear to be substan-
tially worse than available alternatives, a requirement of a
high/maximal level of competence is reasonably required to
ensure that the patient's well-being is adequately protected
and that in exercising his self-determination he has chosen
in accordance with his own aims and values. When the ex-
pected effects for life and health of the patient's choice are
approximately comparable to those of alternatives, a mod-
erate/median level of competence is appropriate to ensure
that the patient's well-being is adequately protected while
respecting his self-determination.
One final and perhaps unexpected consequence of this
variability is that the level of competence for consenting to
and refusing a particular treatment need not be the same,
because the consequences for the patient's well-being may
be dramatically different. It is reasonable to insist that a pa-
tient fully understand that he or she is refusing a life-saving
therapy that has only limited risks, while applying less strict
standards to the patient's acceptance of that same therapy.
While this variability in morally appropriate levels of com-
petence implies the need for discretion on the part of indi-
viduals making competence determinations, legal and
professional practices must be designed to limit the unjus-
tified use of that discretion wrongly to deny patients' rights
ultimately to insist on what they believe will best promote
their values and goals. The more reason we have to distrust
professional use of such discretion, the more we will rea-
sonably design legal rules and practices to limit it.
Voluntariness
For the consent of a competent decision maker to be binding,
it must be voluntary or freely given. Consent that is obtained
as a result of coercion or duress, manipulation or undue
influence, is invalid and does not authorize treatment. An
43

involuntary choice will not reflect the aims of the chooser,

but the will of the coercer or manipulator instead, and so
will violate the chooser's self-determination.
Coercion. A patient's decision is coerced when the patient

is threatened, either explicitly or implicitly, with unwanted
and avoidable consequences unless the patient makes the
desired choice. For example, a gravely ill patient is told that
unless he agrees to further treatment, other palliative mea-
sures to limit his discomfort will be withdrawn. Outright
coercion of patients, at least by health care professionals, is
probably relatively rare, though it may be more common in
special settings, such as mental hospitals, prisons, and some
nursing homes. The great inequalities between involuntarily
committed mental patients, prisoners, children, some nurs-
ing home populations, and those on whom they are depen-
dent, make these groups especially vulnerable to coercion.
Since there is significant potential for conflict of interest be-
tween these groups and their caretakers, special scrutiny of
the voluntariness of their consent to medical care is war-
ranted. Coercion by family members to force treatment is
probably more common than by health care professionals.
With relatively few exceptions, such as inoculations for public
health purposes or treatment in connection with obtaining
evidence in criminal proceedings, coerced or forced treat-
ment of competent patients is not morally justified or legally
permitted. Forced treatment without the patient's consent
can be distinguished from coerced consent. Forced treatment
involves no consent, while coerced consent invalidates the
consent; each makes the treatment unauthorized.
It is sometimes said that patients faced with very difficult
and unpleasant alternatives, such as whether to undergo
painful chemotherapy when it is the only treatment for an
otherwise fatal cancer, do not choose the chemotherapy vol-
untarily because their choice is coerced by the disease itself.
Nevertheless, unpleasant and unwanted choices between
bad alternatives are not in themselves coercive. When the
undesired alternatives are caused, for example, by the pa-
44

Informed consent
tient's illness, rather than by the threat of another person,

they represent the unfortunate but inevitable constraints
within which the patient must decide about treatment. That
all alternatives are "bad" and leave little or no "real choice"
provides no sound reason to set aside the patient's choice as
involuntary and to transfer the decision to another.
It is also important to distinguish coercion involving threats
of unwanted consequences from warnings about the natural
history of a disease and the natural consequences of certain
decisions. In most cases, the distinction turns on whether
the physician acts to bring about the unwanted consequence
(threat) or merely informs the patient that it will be a con-
sequence of one of the patient's alternatives (warning). Tell-
ing a hypertensive patient of the medical consequences of
not taking medication constitutes a warning and does not
coerce him or her to take the medication, whereas threat-
ening to withdraw further care unless the patient accepts the
physician's preferred treatment generally is coercive. The
first is part of a physician's responsibility, while the second
is morally wrong.
Manipulation. Although coercion is probably relatively un-

common in health care relationships, manipulation of patient
decision making is more widespread. Indeed, it is a common
criticism by physicians that the informed-consent process is
meaningless because they can get the patient to agree to
whatever they want. Manipulation in health care relation-
ships is complex, both in theory and practice, and can take
more forms than there is space to discuss here. Many features
of the health care setting make it ripe for manipulation. Pa-
tients are commonly worried and fearful, uncertain of what
is "wrong" with them, and seek reassurance and care. They
are explicitly asked to place their trust in physicians who
possess special knowledge and capacities to give care. In
these circumstances, the disparities in knowledge, status,
and authority make manipulation sometimes hard to avoid.
Perhaps the most blatant form of manipulation is when in-
formation is deliberately withheld from patients in order to
45

affect their choice. For example, they are not told of alter-
native treatments to the one the physician prefers, or of sig-
nificant risks or side effects of a recommended treatment.
This clearly limits a patient's capacity to make an informed
choice that best fits his or her particular needs and values.
Manipulation can, however, be far more subtle than out-
right deception. For example, a physician's manner and tone
of voice can indicate whether a risk is one to worry about,
or whether a concern is justified. The way information is
presented can affect how the patient responds to it - for
example, "This treatment succeeds in two out of every five
cases" or "This treatment fails most of the time." In some
cases, there may be no fully "objective" or "neutral" form
in which necessary information can be conveyed. Neverthe-
less, it generally is possible to avoid putting information in
a form designed to change the patient's decision from what
it would have been with a sound understanding of the in-
formation. Such manipulation may be conceived as being
"for the patient's own good" and producing the "best" de-
cision. Or it may be used merely to avoid the more difficult
and time-consuming process of helping the patient clearly
understand the situation and how alternative courses of ac-
tion may or may not serve his aims and needs. But in the
former case it both infringes self-determination by denying
patients a sound understanding on which to base their choice
and fails to respect the extent to which people's own aims
and values determine what will best promote their own well-
being. In the latter case, although the outcome of patients'
decisions may not be different as a result of the manipulation,
the manipulation bypasses patients' own deliberative pro-
cesses and their self-determination is compromised, making
the decision not fully theirs.
None of this is to say that physicians should not make
treatment recommendations to patients who want those rec-
ommendations, or that such recommendations are inherently
manipulative. On the contrary, it is part of physicians' profes-
sional responsibility to make such recommendations avail-
able, and these recommendations naturally and reasonably
46

Informed consent
influence patients' decisions. If the recommendations are tai-

lored to a particular patient's goals and values and are not
manipulative in the ways discussed above, they need not
compromise the voluntariness of the patient's decision.
The various forms of involuntariness of treatment deci-
sions occur in different degrees - coercion and manipulation
may both be more or less serious, irresistible, and pervasive
in undermining self-determination. Ideal physician-patient
decision making would involve no kind or degree of invol-
untariness. The law and other forms of public policy should
seek to promote this ideal. Nevertheless, legal remedies in
the law for coerced or manipulated consent often require
evidence both that (i) the patient's decision was different
from what it would otherwise have been as a result of the
involuntariness and that (2) the treatment given resulted in
harm to the patient. This is only one instance of the general
fact that the law is neither a desirable nor effective instrument
for preventing or remedying every moral wrong, or every
failure to attain a moral ideal.
Informed understanding
The goal of the requirement that consent be informed is for
patients to achieve a sufficient understanding of their con-
dition and possible treatments so that they can make a sound
assessment of which treatment, if any, will best serve their
goals and values. It thereby permits an informed exercise of
self-determination and promotes a decision most in accord
with the patient's well-being. It is worth adding as an im-
portant practical matter that therapeutic benefits can accrue
from the patient's being well-informed (for example, in-
creased conformity to a treatment regimen), that the great
majority of patients want vital information about their treat-
ment,3 and that the lack of an adequate explanation of the
nature and purpose of a procedure is a major cause of refusals
of treatment by patients.4 Physicians sometimes conceive of
informed consent as principally requiring a disclosure of the
risks of treatment in order to protect themselves from legal
47

liability should a problem arise. This leads to association of

informed consent with the form that the patient signs tes-
tifying that such risks have been disclosed. But such forms
are neither necessary nor sufficient to protect from legal li-
ability, and although obtaining informed consent can protect
against legal liability for battery (though not from liability for
malpractice), that is not its main ethical basis.
The focus on disclosure of risks to protect against legal li-
ability also has had the unfortunate result of shifting atten-
tion away from the comprehension or understanding of the
information by the patient. A patient's understanding is the
result sought by any requirement that a patient be informed.
Thus, physicians should tailor the presentation of informa-
tion to the particular patient so that it is as comprehensible
as possible. This usually will involve avoiding technical med-
ical or scientific jargon and helping the patient understand
the consequences of various medical procedures. Making in-
formation comprehensible to the particular patient also is
relevant to meeting the objection often made by physicians
that informed consent cannot be achieved because patients
only rarely can fully understand the relevant information. In
its extreme form, this objection holds that patients would
have to be given extensive medical and scientific training if
they are to understand fully their medical condition and var-
ious treatment alternatives. Such objections, however, are
largely misguided. Physicians obviously bring medical
knowledge to the treatment decision process that patients
nearly always lack, just as patients bring knowledge of their
own particular goals and values that physicians lack. It is not
necessary for a patient to become a physician in order to give
informed consent. In order to make an informed decision
about treatment, patients do not require all the medical de-
tails and underlying scientific bases of treatment alternatives
that their physicians have. Rather, patients need to under-
stand how those treatment alternatives will affect their
capacity to pursue their various plans of life. This under-
standing rarely will require a sophisticated medical or sci-
entific background.
48

Informed consent
The other aspect of this objection concerns the impossi-

bility or unreasonableness of communicating all information
possibly relevant to the decision at hand. Even if it all could
be communicated, such information would overwhelm the
average patient who is unable to integrate it all into his or
her decision process. Moreover, telling patients of every risk
or possible side effect of treatment, no matter how remote,
might so terrify them that they would reject needed treat-
ment. This objection raises questions about the kinds and
amounts of information that ought to be conveyed to the
patient. The broad kinds of information to be conveyed
are relatively uncontroversial. They should include: (1) the
patient's current medical condition, including a future
prognosis if no treatment is pursued; (2) any treatment al-
ternatives that might improve the patient's condition and
prognosis, including an explanation of the procedures in-
volved, the significant risks and benefits of the alternatives,
with their associated probabilities, and the financial costs of
the alternatives; and (3) a recommendation as to the best
alternative. We assume for the present that the patient has
not expressed a desire not to have any of this information.
If there is anything not commonly discussed in this list, it is
the financial cost of the alternatives. However, when the
costs to the patient are significant (and whether they are will
vary with a patient's circumstances), they can have a sub-
stantial impact on the patient's financial ability to pursue
other goals important to him or her - and so on the overall
desirability of treatment alternatives, and can affect the like-
lihood of the patient's actually pursuing a treatment course.
What is controversial is the amount of information that
must be conveyed. More specifically, concern has focused
on when risks are too remote or inconsequential to require
that the patient be told about them. Courts, as well as the
state legislatures that have intervened on this matter, have
largely been divided between two alternative general stan-
dards of disclosure: (1) the standard of professional medical
practice for such cases - crudely put, an individual physician
must convey particular information, and in particular dis-
49

close risks, if most other physicians do or would do so in

similar cases; (2) the standard of what a reasonable person
would want to know in the case at hand - or, as it is some-
times put, whatever information is "material" to the decision
at hand. The first standard probably provides a clearer guide
for physicians, as well as greater protection from liability for
nondisclosure. However, given the long paternalistic tradi-
tion of limited disclosure of information to patients, the
"professional practice" standard fails to ensure that patients
will have the information necessary for sound decision mak-
ing. The "reasonable person" standard, though introducing
greater uncertainty about just what information must be con-
veyed, is more likely to result in patients obtaining necessary
information. However, as a moral matter, this standard
should be amended to require conveying whatever infor-
mation a reasonable person would want to know, plus what-
ever else the actual person wants to know. For example, a
professional athlete may quite reasonably want to know
about a risk from treatment that would ruin her career that
others would not want disclosed to them. So it is important
that physicians consider the particular concerns and values
of the actual patient and how these may differ from other
persons. Perhaps the simplest way to try to ensure meeting
any unusual information needs a particular patient may have
is always to invite the patient to ask for any additional in-
formation he or she may want after a discussion of infor-
mation the physician considers material to the decision.
Legal policy
Here, as elsewhere in this essay, the focus is on the ethically
sound basis and nature of informed consent. There may be
good reason not to fully individualize the legal requirement
for disclosure because of the difficulty of establishing in lit-
igation, often taking place long after the event in question,
what the particular patient wanted to know. Doing so would
create an invitation for self-serving testimony by patients,
for whom a remote risk has eventuated in actual harm, that
50

Informed consent
"of course, I would have wanted to know about that." For

similar reasons, it may be best for the law not to allow less
disclosure than a reasonable person would want, even
though fully respecting self-determination would support
doing so when patients do not want to be told that infor-
mation. As a matter of public and legal policy, it is probably
best not to fully individualize the information requirement,
in order to help protect against the abuse of patients being
denied information they do or would in fact want.
The requirement that a patient be informed before con-
senting often is claimed to be limited by a physician's "ther-
apeutic privilege." Specifically, it is claimed that physicians
are justified in not informing competent patients of particular
risks when doing so would seriously upset the patient. Ther-
apeutic privilege has the potential of seriously undermining
the informed-consent doctrine, given that physicians are
quite naturally averse to conveying unpleasant information
to their patients, and that patients quite naturally become
upset at learning it. Consequently, any ethically acceptable
exception to the requirement of informed consent based on
therapeutic privilege must be carefully and narrowly framed.
Rather than merely "upsetting" the patient, it should be the
case that disclosing the information would cause serious
harm to the patient. And the harm must result from the
receipt of the information itself, independent of its causing
the patient to make a different treatment decision than he or
she would otherwise have made. Moreover, there should be
strict evidentiary requirements for the harm, such as clear
and convincing evidence of the high probability of imminent
and serious harm. Any such standard will require much
interpretation in individual cases - when is evidence clear
and convincing, what probability is high enough, when is
harm imminent and serious? It would permit temporarily
withholding from a deeply depressed and suicidal patient
devastating information highly likely to trigger a suicide at-
tempt. However, in the interest of limiting its abuse such a
standard would rightly set a high burden of proof on phy-
sicians who sought to invoke therapeutic privilege. It is prob-

ably reasonable as well to require, when therapeutic privilege

is invoked and important information is withheld from a
competent patient, that the procedures required for incom-
petent patients involving use of a surrogate decision maker
be followed.
Therapeutic privilege is one of the exceptions to the general
requirement that treatment cannot be given without the pa-
tient's informed consent. I have discussed in detail a second
exception - incompetence. I have also discussed a third ex-
ception - waiver by patients of their right to decide. The final
exception to the informed-consent requirement is emergency
- treatment can be given without a patient's consent when
failure to render urgent care would likely result in serious
harm or loss of life to the patient, and obtaining the patient's
consent is either not possible or would seriously delay the
rendering of that care.
The overall argument of this essay can be summarized in
a sentence: giving due weight to the value of personal well-
being while respecting individual self-determination morally
requires gaining and honoring the informed and voluntary
consent of competent patients for their medical treatment.
However, such a simple summary should not be allowed to
obscure two points. First, even the more detailed analysis of
informed consent here is not detailed enough. It leaves many
issues unaddressed - for example, what role, if any, should
patients' unconscious beliefs and motivations play in deter-
minations of their decision-making competence, voluntari-
ness, and understanding? And it leaves many cases hard
cases - for example, in instances in which a patient's well-
being and self-determination are in conflict, we lack any pre-
cise and uncontroversial basis for assigning a weight to each.
But even the best and most detailed analysis leaves genuinely
hard cases hard and controversial, though it should help us
understand better why they are hard and what conflicting
values and arguments make them controversial. Second, the
moral ideal of informed consent expressed here is a high
ideal, which is often realized imperfectly at best in medical
practice. There is not space here to explore the many avenues
52

Informed consent
of change that might help move much medical practice closer

to that ideal. But there can be little doubt that fully realizing
the ideal would involve significant transformations of the
traditional health care process.
NOTES
1 Some of the important legal cases bearing on informed consent

include Schloendorff v. Society of New York Hospital, 211
N.Y. 125, 105 N.E. 92, 95 (1914), in which the right to self-
determination is asserted; Salgo v. Leland Stanford Jr. Univer-
sity Board of Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 (1957)/
in which "informed" was added to the consent requirement to
yield "informed consent"; Natanson v. Kline 186 Kan. 393, 350
P.2d 1093, the opinion on denial of motion for rehearing, 187
Kan. 186 354 P.2d 670 (1960); and Canterbury v. Spence, 464
F.2d 772 (D.C. Cir), cert, denied, 409 U.S. 1064 (1972) and Cobbs
v. Grant, 8 Cal. 3d 229 104 Cal. Rptr. 505, 502 P.2d 1 (1972),
both of which enunciate standards of disclosure of information.
2 Isaiah Berlin, "Two Concepts of Liberty," in Four Essays on
Liberty (Oxford: Clarendon Press, 1969), 118-138.
3 See the survey of public and professional attitudes and practices
in the area of informed consent performed for the President's
Commission by Louis Harris Associates, in Making Health Care
Decisions: The Ethical and Legal Implications of Informed Consent in
the Patient-Practitioner Relationship, Volume Two: Appendices,
President's Commission for the Study of Ethical Problems in
Medicine and Biomedical and Behavioral Research (Washing-
ton, D.C: U.S. Government Printing Office, 1982).
4 See the study of treatment refusal by Paul Applebaum and
Loren Roth in Making Health Care Decisions, Volume Two,
appendices.
SUGGESTIONS FOR FURTHER READING
Capron, Alexander. "Informed Consent in Catastrophic Disease

Research and Treatment." University of Pennsylvania Law Review
123 (December 1974): 340-438.
Childress, James F. Who Should Decide? Paternalism in Health Care.
New York: Oxford University Press, 1983.
53

Drane, James. "The Many Faces of Competency." Hastings Center

Report 15 (April 1985): 17-21.
Dworkin, Gerald. "Autonomy and Informed Consent." In Making
Health Care Decisions: The Ethical and Legal Implications of Informed
Consent in the Patient-Practitioner Relationship, Volume Three: Ap-
pendices, Studies on the Foundations of Informed Consent. Pres-
ident's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research. Washington, D.C.:
U.S. Government Printing Office, 1982.
Freedman, Benjamin. "A Moral Theory of Informed Consent."
Hastings Center Report 5 (August 1975): 32-39.
Kass, Leon. "The End of Medicine and the Pursuit of Health." In
Toward a More Natural Science: Biology and Human Affairs. New
York: Free Press, 1985.
Katz, Jay. The Silent World of Doctor and Patient. New York: Free
Press, 1983.
Lidz, Charles W., et al. Informed Consent: A Study of Decisionmaking
in Psychiatry. New York: The Guilford Press, 1984.
Making Health Care Decisions: The Ethical and Legal Implications of
Informed Consent in the Patient-Practitioner Relationship, Volumes
One through Three. President's Commission for the Study of
Ethical Problems in Medicine and Biomedical and Behavioral
Research. Washington, D.C.: U.S. Government Printing Office,
1982.
Meisel, Alan; Roth, Loren H.; and Lidz, Charles W. "Toward a
Model of the Legal Doctrine of Informed Consent." American
Journal of Psychiatry 134 (1977): 285-289.
Roth, Loren; Meisel, Alan; and Lidz, Charles W. "Tests of Com-
petency to Consent to Treatment." American Journal of Psychiatry
134 (1977): 279-284.
Tancredi, Laurence R. "The Right to Refuse Psychiatric Treatment:
Some Legal and Ethical Considerations." Journal of Health Politics,
Policy and Law 5 (Fall 1980): 514-522.
Veatch, Robert M. "Three Theories of Informed Consent: Philo-
sophical Foundations and Policy Implications." In Appendix B
to The Belmont Report: Ethical Principles and Guidelines for the Pro-
tection of Human Subjects of Research, Volume Two, chapter 26,
pp. 1-66. DHEW Publication No. (OS) 78-0014. Washington,
D.C.: U.S. Government Printing Office, 1978.
54

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Chapter i

The two central aims of the requirement that medical care

Case 1. Dr. Smith diagnoses his patient, Mrs. Jones, as

Case 2. Mr. Brown is suffering multiple complications

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cessity of dialysis treatments for the rest of his life. He

The importance of informed consent is different in these

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that the treatment should be undertaken. In the crunch, as

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nothing more. Their role is passively to follow the instruc-

THE VALUES UNDERLYING INFORMED CONSENT

The informed-consent doctrine serves not only the individual

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determination. Both the nature of these values, as well as

https://doi.org/10.1017/CBO9780511625350.002 Published online by Cambridge University Press

contrary to a patient's well-being. In a few cases, however,

https://doi.org/10.1017/CBO9780511625350.002 Published online by Cambridge University Press

particular components of health, in comparison with other

https://doi.org/10.1017/CBO9780511625350.002 Published online by Cambridge University Press

the patient's physician typically will be the best judge. There

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consequences of alternative treatments. More relevant to the

https://doi.org/10.1017/CBO9780511625350.002 Published online by Cambridge University Press

as they have decided they want to act. Respecting self-

I wish my life and decision to depend on myself, not on ex-

The value of self-determination. What weight should be

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Self-determination typically is valued both for the good

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contrary to their own good. In those cases, not only must

https://doi.org/10.1017/CBO9780511625350.002 Published online by Cambridge University Press

decide in a way that would more effectively promote their

Waiving self-determination. Patients often do not take an

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interfering in the physician's professional decision about

https://doi.org/10.1017/CBO9780511625350.002 Published online by Cambridge University Press

patients' rights to decide that it would produce. Whether

Other values served by informed consent

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case of a comatose patient, a patient may be unable to make

THE CONDITIONS FOR VALID INFORMED CONSENT

The requirements of a morally valid consent are commonly

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at all - the comatose, infants and very young children, and

The importance of competence. The importance of the de-

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diminished in such circumstances; nevertheless, the values

Elements and standards of decision-making competence. In

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together necessary for a patient to be able to acquire and use

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middle category and evaluates the process of the patient's

Ability to express a preference. This standard of competence

Standards evaluating the content of the patient's decision. While

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of incompetence on the content of the patient's decision inev-

Standards evaluating the nature of the patient's understanding and