Informed Consent, Patient Autonomy and Causation: Competing Perspectives - The United States, Ireland and Germany

• Author: David Vos
• Position: Junior Sophister LLB Candidate, Trinity College Dublin
• Pages: 147-167

INFORMED

CONSENT,

PATIENT

AUTONOMY

AND

CAUSATION:

COMPETING

PERSPECTIVES

THE

UNITED

STATES,

IRELAND

AND

GERMANY

DAVID

VOS*

Introduction

Historically,

medical practice

has

been based

on

the

Hippocratic

Oath,

governed

primarily

by

principles

of

paternalism

and

beneficence.

Under

such

an

approach,

the

patient

is

subject

to

whatever

treatment

a

physician

deems

to

be

in

his

best

interests,

with

little

or

no

regard

to

his

personal

autonomy.

In

the

past

century,

however,

there

has

been

an

increasing

recognition

of

the value

of

personal

autonomy

in

the

decision-making

process.

This

has

led

to

the

development

in

all

common

law and

civil

jurisdictions

that,

at

the very least,

health

care

must

not

be

administered

without

the

patient's

consent.

Recognition

of

patient

autonomy

has

been

fuelled by

changes

in

societal

values.

An evolving view

of

the

relationship

between doctor

and

patient,

increased

recognition

of

the

importance

accorded

to

individual

freedom

of

action, increased

recognition

of

the

application

and

importance

of

basic

human

rights, advances

in

medical

techniques,

increasingly educated

populations,

access to

information

over

the

internet

and

greater

patient

choice

are

all

responsible

for

the increased

weight

afforded

to

patient

autonomy

today.'

The

principles

of

patient

autonomy

dictate

that

an

adult

of

"sound"

mind

can

determine

absolutely

what

is

done

to

his

or

her

body.

2

True

patient

autonomy

is

thus based

on the

right

of

the

patient

to

knowingly

make

decisions

regarding

medical

treatment,

no

matter

how

unwise

others

may

consider them,

or

how

disastrous

their

effects

on the

patient

may

be.

3

The

doctrine

of

informed consent

to

medical

treatment,

inherently

linked

to

this

concept,

has

played

a

central

role

in

the emergence

of

patient

autonomy

as

a

key

tenet

of

medical practice.

"Informed

consent"

is

commonly

used

as

shorthand

for

two

distinct

but

nonetheless

interrelated

duties: the

duty to

obtain

a

patient's

consent

before

treatment,

and

the

duty

*

Junior

Sophister

LLB

Candidate, Trinity College

Dublin.

1Meg

Wallace,

Health

Care

and

the

Law

(2

nd

ed.,

Law Lawbook

Co,

1995),

at

63.

2

bid.,

at

64.

3

Ibid.

©

2010

David

Vos and

Dublin

University Law

Society

Trinity

College

Law

Review

to

ensure

that

a

patient

has

been

given enough

information

to enable

him

to

make

an

"informed"

choice.

4

The

concepts

of

patient

autonomy

and

informed

consent

are

not, however,

the

sole

concern

of

the

courts.

All

jurisdictions

have

found

it

necessary

to

resolve conflicts

between

patient

autonomy

on

the

one

hand,

and

concerns

over

remaining

interests

in

medical

paternalism,

deference to

the

medical

profession,

limitations

on

the

scope

of

medical liability,

and

practicalities

in

court

proceedings

on

the

other.

Different

jurisdictions

have

afforded

varying

weights

to

each

of

these

considerations,

resulting

in

different

relative

strengths

being accorded

to

the

principle

of

patient

autonomy.

This

article deals

with

the balance

struck

in

three

jurisdictions:

the

United

States,

Ireland

and

Germany.

Jurisprudence

in

the

United

States seems

on

its

face

to

accord

significant

weight

to

patients'

"rights"

of

autonomy

and

self-determination, but

the

adoption

of

a

negligence-based framework

and

an

objective

stance

to

causation

ultimately

negates

much

of

the

practical

strength

of

these

"rights."

In

Ireland,

a

significant

traditional

deference to

the

medical

profession

is

still

manifest

in

relation

to

the

standard

of

care

owed

by

practitioners

in

a

medical malpractice

context. However,

an

emerging

body

of

case

law

in

the

courts

advocates increased

respect

for

patient

autonomy

and

a

mitigation

of

the

harshness

of

both

the

negligence

framework

and

principles

of

causation

to

give

practical

effect

to

autonomy

values. The

German

courts

have

had

the

highest

regard

for

patient

autonomy,

fuelled

by

express

recognition

of

rights

of

self-determination

and

autonomy

in

the

German

Constitution

(Grundgesetz)

5

and

a

legal

framework

that

is

far

more

favourable

to

the

patient than

standard

common

law

negligence.

The

Position

in

the United

States

In

the

United

States,

the

original

justification

for

consent

and

disclosure

requirements

in

a

medical

context

was

derived

from

a

beneficence model

of

health

care,

in

which

the

principal obligation

of

the

physician

was

to

provide medical assistance.

6

Thus,

non-disclosure

of

medical information

was

often

justified

on the basis

of

a

paternal

desire

to

avoid causing

undue

4

Emily

Jackson,

"'Informed

Consent'

to

Medical

Treatment

and the

Importance

of

Tort"

in

Sheila AM McLean

ed.,

First

Do

No

Harm:

Law,

Ethics

and

Healthcare

(Ashgate,

2006),

at

273.

5

See

Article

2

1

of

the

German

Constitution.

6

Leanna

Darvall,

Medicine

Law

and

Social

Change:

The

Impacts

of

Bioethics, Feminism

and

Rights

Movements

on

Medical

Decision-Making

(Aldershot,

1993),

at

34.

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