The doctrine of informed consent, defined as respect for autonomy, is the tool used to govern the relationship between physicians and patients. Its framework relies on rights and duties that mark these relationships. The main purpose of informed consent is to promote human rights and dignity. Some researchers claim that informed consent has successfully replaced patients' historical predispositions to accept physicians' advice without much explicit resistance. Although the doctrine of informed consent promotes ideals worth pursuing, a successful implementation of these (...) ideals in practice has yet to occur. What has happened in practice is that attorneys, physicians, and hospital administrators often use consent forms mainly to protect physicians and medical facilities from liability. Consequently, ethicists, legal theorists, and physicians need to do much more to explain how human rights and human dignity relate to the practice of medicine and how the professionals can promote them in practice. This is especially important because patients' vulnerability has increased just as the complexity and power of medical science and technology have increased. Certain health care practices can shed light on the difficulties of implementing the doctrine of informed consent and explain why it is insufficient to protect patients' rights and dignity. Defining a normal biological event as a disease, and routinely prescribing hormone drug therapy to menopausal women for all health conditions related to menopause, does not meet the standards of free informed consent. Clinicians provide insufficient disclosure about risks related to long-term use of hormone therapies and about the absence of solid evidence to support their bias toward hormone therapies as a treatment of choice for menopause related health conditions. The contributing problem is women's failure to act as autonomous agents because they either choose not to take an active part in their own therapy or because they fear to question physicians' medical authority. To insure that patients' autonomy and free choice are a part of every physician-patient interaction, physicians and patients need actively to promote them as values that are absolutely indispensable in physicians' offices, clinics, and hospitals. (shrink)

The “therapeutic obligation” is a physician’s duty to provide his patients with what he believes is the best available treatment. We begin by discussing some prominent formulations of the obligation before raising two related considerations against those formulations. First, they do not make sense of cases where doctors are permitted to provide suboptimal care. Second, they give incorrect results in cases where doctors are choosing treatments in challenging epistemic environments. We then propose and defend an account of the therapeutic obligation (...) that solves the problems that undermined previous efforts at formulating the TO. We conclude by considering how apparent problems with our proposal actually rest on difficulties with informed consent. (shrink)

Physicians and other medical practitioners make untold numbers of judgments about patient care on a daily, weekly, and monthly basis. These judgments fall along a number of spectrums, from the mundane to the tragic, from the obvious to the challenging. Under the rubric of evidence-based medicine, these judgments will be informed by the robust conclusions of medical research. In the ideal circumstance, medical research makes the best decision obvious to the trained professional. Even when practice approximates this ideal, it does (...) so unevenly. Judgments in medical practice are always accompanied by uncertainty, and this uncertainty is a fickle companion—constant in its presence but inconstant in its expression. This feature of medical judgments gives rise to the moral responsibility of medical practitioners to be epistemically humble. This requires the recognition and communication of the uncertainty that accompanies their judgment as well as a commitment to avoiding intuitive innovations. (shrink)

The growing use of interoperable electronic health records is likely to have significant effects on the physician-patient relationship. This relationship involves two-way trust: of the physician in patients, and of the patients in their providers. Interoperable records opens up this relationship to further view, with consequences that may both enhance and undermine trust. On the one hand, physicians may learn that information from their patients is — or is not — to be trusted. On the other hand, patients may learn (...) from the increased oversight made possible by electronic records that their trust in their physicians is — or is not — warranted. Release of information through new methods of surveillance may also undermine patient trust. The article concludes that because trust is fragile, attention to transparency and confidentiality in the use of interoperable electronic records is essential. (shrink)

More than three decades after its introduction as a legal requirement for medical treatment in the clinical setting, informed consent continues to be viewed with skepticism as to its need or effectiveness. Some maintain that it is not required because the ordinary individual believes that doctors can be trusted to behave In the best interests of their patients. This issue will be discussed in a later portion of this article. Others are persuaded that informed consent is an unattainable ideal given (...) the limited capacity of the ordinary individual to understand the relevant information. This view is supported by studies intended to show that satisfactory understanding on the part of patients cannot be achieved. In rebuttal, Apple-baum, Lidz, and Meisel observed that:Such statements are easily refuted by reference to studies of situations in which reasonable comprehension actually has been achieved. A sounder interpretation of all these studies might be that patients and subjects can attain a good level of understanding in many cases, but that several factors — including the manner in which disclosure is made as well as patients' limitations — may get in the way. (shrink)

Physicians make some medical decisions without disclosure to their patients. Nondisclosure is possible because these are silent decisions to refrain from screening, diagnostic or therapeutic interventions. Nondisclosure is ethically permissible when the usual presumption that the patient should be involved in decisions is defeated by considerations of clinical utility or patient emotional and physical well-being. Some silent decisions - not all - are ethically justified by this standard. Justified silent decisions are typically dependent on the physician's professional judgment, experience and (...) knowledge, and are not likely to be changed by patient preferences. We condemn the inappropriate exclusion of the patient from the decision-making process. However, if a test or treatment is unlikely to yield a net benefit, disclosure and discussion are at times unnecessary. Appropriate silent decisions are ethically justified by such considerations as patient benefit or economy of time. (shrink)

It has become common in medical ethics to discuss difficult cases in terms of the principles of respect for autonomy, beneficence, nonmaleficence, and justice. These moral concepts or principles serve as maxims that are suggestive of appropriate clinical behavior. Because this language evolved primarily in the acute care setting, I consider whether it is in need of supplementation in order to be useful in the long-term care setting. Through analysis of two typical cases involving residents of long-term care facilities, I (...) argue for the additional principles of candor and responsibility for narrative integrity. (shrink)

Movies can serve valuable didactic purposes teaching clinical ethics to medical students. However, using film sequences as means to develop critical thinking is not a straightforward task. There is a significant gap in the literature regarding how to analyse the ethical content embedded in these clips systematically, in a way that facilitates the students’ transition from anecdotal reflections to abstract thinking. This article offers a pedagogical proposal to approach the ethical analysis of film sequences in a systematic fashion. This structured (...) stepwise method encourages students to identify the main ethical problem of a selected scene and to reflect on the theoretical principles involved, emphasizing the application of these norms and values in a contextually situated analysis. We believe this method in film studies both reinforces the students’ comprehension of the theoretical framework of an ethical topic, and casts light on its pertinence and limitations under the circumstances of the scene, thus proving a constructive tool to strengthen the bridge between the theoretical teaching of clinical ethics and clinical practice. (shrink)

The practice around informed consent in clinical medicine is both inconsistent and inadequate. Indeed, in busy, contemporary health care settings, getting informed consent looks little like the formal process developed over the past sixty years and presented in medical textbooks, journal articles, and academic lectures. In this article, members of the Society of Teachers of Family Medicine (STFM) Collaborative on Ethics and Humanities review the conventional process of informed consent and its limitations, explore complementary and alternative approaches to doctor‐patient interactions, (...) and propose a new model of consent that integrates these approaches with each other and with clinical practice. The model assigns medical interventions to a consent continuum defined by the discrete categories of traditional informed consent, assent, and nondissent. Narrative descriptions and clinical exemplars are offered for each category. The authors invite colleagues from other disciplines and from the academic ethics community to provide feedback and commentary. (shrink)

In this paper we address the question of how it can be possible for a non-expert to acquire justified true belief from expert testimony. We discuss reductionism and epistemic trust as theoretical approaches to answer this question and present a novel solution that avoids major problems of both theoretical options: Performative Expert Testimony. PET draws on a functional account of expertise insofar as it takes the expert’s visibility as a good informant capable to satisfy informational needs as equally important as (...) her specific skills and knowledge. We explain how PET generates justification for testimonial belief, which is at once assessable for non-experts and maintains the division of epistemic labor between them and the experts. Thereafter we defend PET against two objections. First, we point out that the non-expert’s interest in acquiring widely assertable true beliefs and the expert’s interest in maintaining her status as a good informant counterbalances the relativist account of justification at work in PET. Second, we show that with regard to the interests at work in testimonial exchanges between experts and non-experts, PET yields a better explanation of knowledge-acquisition from expert testimony than externalist accounts of justification such as reliabilism. As our arguments ground in a conception of knowledge, which conceives of belief-justification as a declarative speech act, throughout the rearmost sections of this paper we also indicate to how such a conception is operationalized in PET. (shrink)

In this paper we address the question of how it can be possible for a non-expert to acquire justified true belief from expert testimony. We discuss reductionism and epistemic trust as theoretical approaches to answer this question and present a novel solution that avoids major problems of both theoretical options: Performative Expert Testimony (PET). PET draws on a functional account of expertise insofar as it takes the expert’s visibility as a good informant capable to satisfy informational needs as equally important (...) as her specific skills and knowledge. We explain how PET generates justification for testimonial belief, which is at once assessable for non-experts and maintains the division of epistemic labor between them and the experts. Thereafter we defend PET against two objections. First, we point out that the non-expert’s interest in acquiring widely assertable true beliefs and the expert’s interest in maintaining her status as a good informant counterbalances the relativist account of justification at work in PET. Second, we show that with regard to the interests at work in testimonial exchanges between experts and non-experts, PET yields a better explanation of knowledge-acquisition from expert testimony than externalist accounts of justification such as reliabilism. As our arguments ground in a conception of knowledge, which conceives of belief-justification as a declarative speech act, throughout the rearmost sections of this paper we also indicate to how such a conception is operationalized in PET. (shrink)

On March 9, 1993, in the first ruling of its kind, the Maryland Court of Appeals declared that physicians and hospitals may be sued for failing to inform patients of a practitioner’s human immunodeficiency virus status. What is more significant, these suits may be pursued even in instances when the physician has followed universal precautions and the patient did not contract the virus that causes acquired immunodeficiency syndrome. The Maryland court addressed two central questions in Faya v. Almaraz. First, do (...) HIV-infected physicians have a legal duty to inform their patients of their HIV status? And, second, can patients recover damages for fear induced by a physician’s conduct? While one finds numerous precedents that authorize actions to recover damages based purely on fear of disease and emotional distress, the Faya court’s holdings on the issue significantly expand the scope of potential liability. Moreover, the court’s analysis of the informed consent and HIV-infected physician issue is incomplete, inconsistent, and represents an unjustified and unwise departure from traditional informed consent theory. It, and its progeny, may have widespread and dire repercussions. (shrink)

This paper explains why informed consent for randomized comparative effectiveness research must include risks of standard care. Disclosures of such risks are both legally and ethically required and, for reasons discussed in the paper, should remain so.

The United States, like other countries facing rising health care costs, is pursuing a commitment to interoperable electronic health records. Electronic records, it is thought, have the potential to reduce the risks of error, improve care coordination, monitor care quality, enable patients to participate more fully in care management, and provide the data needed for research and surveillance. Interoperable electronic health records on a national scale — the ideal of a national health information network — seem likely to magnify these (...) advantages. Thus, the recent economic stimulus package contains considerable funding for the development of “health information technology architecture that will support the nationwide electronic exchange and use of health information in a secure, private, and accurate manner.”. (shrink)

What is informed consent in medicine? For more than a generation, this deceptively simple question has vexed the law, discomfited medicine, and generated much inspired, provocative, and even contentious commentary.The question has also spawned several lawsuits. On one side stand patients who claim that, at the time of consent, they were ignorant of a particular risk; who state that, with more or different information, they would have chosen a different treatment; and who argue that, because of an adverse outcome, they (...) now deserve remuneration. On the other side, doctors uneasily watch the lengthening list of suits. Some, troubled by the law's expectations, have reacted by variously describing informed consent as a myth, a fiction, an unattainable goal, or a snare to entrap physicians. They point to the legal commentary condemning informed consent law as ill-defined, diffuse, and fraught with inconsistency, hazy at its best and virtually indecipherable to physicians at its worst: and lacking a fair standard to determine when a patient has sufficient knowledge to give effective consent. (shrink)

This paper addresses three factors that have contributed to shifts in decision making in health care. First, the notion of patient autonomy, which has changed due to the rise of patient-centred approaches in contemporary health care and the re-conceptualization of the physician-patient relationship. Second, the understanding of patient autonomy has broadened to better engage patient participation. Third, the need to develop cross-cultural health care ethics. Our paper shows that the shift in the West from the individual to the relational self (...) indicates an important change in the understanding of autonomy through the lens of culture. Practices that recognize the notion of the relational self allow for a more balanced view of autonomy and a richer conception of moral agency. (shrink)

The standard models for what doctors must tell their patients are based on the idea of informed consent: physicians must provide the information that patients need to make treatment decisions. In fact, though, they usually provide considerably more information than this model requires. And rightly so: patients should receive enough information that they will not be surprised by whatever happens—unless the physician is also surprised.

The ability to recognize and respond to the ethical dimension of medicine is integral to providing health care that is comprehensive and humane. However, this aspect of medical practice is underemphasized in clinical and academic medicine, despite attempts to devise curricula in this field. This paper examines the origins and consequences of this deficiency through a case history of a Jehovah's Witness who reluctantly accepted a blood transfusion. It emphasizes the ubiquity of the ethical context in medicine and argues that (...) blindness to this context stems from the prevailing scientific and technological paradigm in medicine. Innovations in medical education are called for to enhance health care providers' abilities to appreciate and cope with these complex situations. (shrink)

Physicians make some medical decisions without disclosure to their patients. Nondisclosure is possible because these are silent decisions to refrain from screening, diagnostic or therapeutic interventions. Nondisclosure is ethically permissible when the usual presumption that the patient should be involved in decisions is defeated by considerations of clinical utility or patient emotional and physical well-being. Some silent decisions—not all—are ethically justified by this standard. Justified silent decisions are typically dependent on the physician's professional judgment, experience and knowledge, and are not (...) likely to be changed by patient preferences. We condemn the inappropriate exclusion of the patient from the decision-making process. However, if a test or treatment is unlikely to yield a net benefit, disclosure and discussion are at times unnecessary. Appropriate silent decisions are ethically justified by such considerations as patient benefit or economy of time. (shrink)

What is informed consent in medicine? For more than a generation, this deceptively simple question has vexed the law, discomfited medicine, and generated much inspired, provocative, and even contentious commentary.The question has also spawned several lawsuits. On one side stand patients who claim that, at the time of consent, they were ignorant of a particular risk; who state that, with more or different information, they would have chosen a different treatment; and who argue that, because of an adverse outcome, they (...) now deserve remuneration. On the other side, doctors uneasily watch the lengthening list of suits. Some, troubled by the law's expectations, have reacted by variously describing informed consent as a myth, a fiction, an unattainable goal, or a snare to entrap physicians. They point to the legal commentary condemning informed consent law as ill-defined, diffuse, and fraught with inconsistency, hazy at its best and virtually indecipherable to physicians at its worst: and lacking a fair standard to determine when a patient has sufficient knowledge to give effective consent. (shrink)

When Jean-Paul Sartre, the French existentialist philosopher, declared some four decades ago that man makes himself, this assertion was based on Sartre's belief that human beings do not possess an essential human nature. Man's self creation had to do with his freedom to choose the roles that he played or could play, and their attendant effects on his attitudes and responsibilities. It said nothing about his freedom to alter his biological nature.

Spirituality or religion often presents as a foreign element to the clinical environment, and its language and reasoning can be a source of conflict there. As a result, the use of spirituality or religion by patients and families seems to be a solicitation that is destined to be unanswered and seems to open a distance between those who speak this language and those who do not. I argue that there are two promising approaches for engaging such language and helping patients (...) and their families to productively engage in the decision-making process. First, patient-centered interviewing techniques can be employed to explore the patient's religious or spiritual beliefs and successfully translate them into choices. Second, and more radically, I suggest that in some more recalcitrant conflicts regarding treatment plans, resolution may require that clinicians become more involved, personally engaging in discussion and disclosure of religious and spiritual worldviews. I believe that both these approaches are supported by rich models of informed consent such as the transparency model and identify considerations and circumstances that can justify such personal disclosures. I conclude by offering some considerations for curbing potential unprofessional excesses or abuses in discussing spirituality and religion with patients. (shrink)