Law, medicine, and trust.

Abstract

There is a stark dichotomy between the significance of trust in medical relationships and the lack of attention paid to trust in existing legal analyses. Health care law lacks a developed vocabulary, analytical framework, or body of empirical information for focusing on the psychological realities of trust, vulnerability and illness. This article seeks to give legal and public policy analysts the tools and information they need to begin thinking clearly and constructively about trust by establishing the following foundational features of medical care delivery: (1) Trust is essential and unavoidable in medical relationships. Patients need and want to trust, and without trust medical relationships never form or are entirely dysfunctional. (2) Beyond the mechanics of forming and conducting treatment relationships, trust may confer therapeutic benefit by activating non-specific or self-healing mechanisms, or by enhancing the effects of active therapies. Medical trust has this unique instrumental value because of its strong emotional content, which results from the deep vulnerability of illness that gives rise to trust. (3) Law can (and does) enforce trust-related expectations, punish violations of trust, facilitate the psychology of trust, and undermine trust. These effects occur both through direct regulation and through the law's expressive function and its relationship with social and professional norms. (4) These legal attitudes toward trust sometimes come into conflict because enforcing trust or punishing its violations can also weaken the psychological foundations of trust. (5) Striking the best compromise among competing legal stances toward trust often requires subtlety, complexity, and detailed empirical information about the psychology of trust. (6) Honoring these principles may require that formal legal rights be softened somewhat with the therapeutic reality of trust. Recognizing these points does not require us to jettison or rework entire sections of the field, however, since most of existing law is broadly consistent with the psychology of trust. Seeing this demonstrates that a therapeutic perspective can reconcile many of the tensions between a strong patient rights orientation and a more enlightened version of professionalism.