Legal review: informed consent--a shift from paternalism to self-determination?

Abstract

This shift from a paternalistic standard for determining how much information should be disclosed to a person to a standard that values the self-determination of a person is consistent with the philosophical change in decision-making in a variety of areas of health care. Haber begins his article with a discussion of the psychiatry profession's proposed change in terminology from "patient" to "client." He argues that such a change would be more than semantic: It would serve the moral purpose of increasing such a person's autonomy. The right of patients to see their own medical records was formally recognized as part of the Patient's Bill of Rights in 1972 and has since been recognized by courts and incorporated into many state statutes. Likewise, the refusal of medical treatment has become a right more commonly recognized by the law throughout the 1970s and 1980s. For example, "living wills" are now a common vehicle for patients to express their views regarding the right to refuse treatment. Courts have recognized this right in cases of Jehovah's Witnesses refusing transfusions, the right to have life-sustaining procedures discontinued, and the restrictive involuntary commitment statutes that arose in the 1970s. Both the risks and benefits of medical treatments have increased with the forward march of technology. Patients have the right to choose to participate with their physicians in their own health care decision making; the trend toward the reasonable patient standard in medical malpractice suits that relied on negligent failure to obtain informed consent reflects a recognition of that right.