Autonomy, Informed Consent,
and Refusal of Treatment
The notion of informed consent is a
recent one. Prior to the 1950’s, there was
no firm ground in which a commitment
to informed consent could be grounded.
It is important that we work to
understand exactly what it means to
make an informed decision, so that we
can be certain that our patients are able
to act autonomously.
Canterbury v. Spence
Informed Consent
The first and most influential decision on
the issue. The court recognizes that,
given the unequal nature of the medical
professional and the patient, it is
essential that the doctor disclose the
given risks of a procedure.
What is legally required?
 Certainly not full disclosure. It seems
unreasonable to require that every
risk be fully explained. What would
full disclosure really mean or
require?
 We need more than simply
community standards that “good
medical practice” requires. The duty
to disclose arises from phenomena
apart from medical custom and
practice.
 Instead, the duty to reveal arises out
of the patient’s right to self-decision,
or, as we have been saying, the
patient’s autonomy. The patient has a
right to any information that is
materially relevant to that patient’s
making an informed decision. Any
risks that would potentially affect the
decision must be revealed.
How do we decide what is material to
making an informed decision? The
liability for that is to be determined by
reasonable foresight, not hindsight: “a
risk is thus material when a reasonable
person, in what the physician knows or
should know to be the patient’s position,
would be likely to attach significance to
the risk or cluster of risks in deciding
whether or not to forego the proposed
therapy” (73). Continue in the next
paragraph.
Some risks are inherent and do not need
disclosure—e.g., infection, issues that
the average person would know, hazards
that the patient is already aware of, or
risks that have no materiality to the
patient’s decision on therapy.
Exceptions: 1) the patient is unconscious
(then consult a relative when possible) 2)
disclosure would subvert autonomy,
though this must not be used as an
excuse for paternalism.
Physicians and Patients: A History of
Silence
Jay Katz
First, consider the opening paragraph: p.
74. It has been the long tradition in
medicine that patients are “only in need
of caring custody.” There has been the
assumption that relying on the patient’s
autonomy to make a decision was
inimical to good medical care.
Challenges have recently arisen; AngloAmerican law has had a long tradition of
preferring liberty over custody, but in
this case, that has been a problem.
Katz claims:
 that the courts have not appreciated
how deeply the tradition of silence is
rooted in medical practice, and that
their appeals to self-determination
were radically foreign to the
standards of medical practice.
 that it was this fact that contributed
to the physician’s construing these
rulings as being more far-reaching
than the courts intended them to be.
 medical silence had been almost a
necessity, especially during the time
that medical practices were less than
scientific. Our medical knowledge
was seriously inadequate, and it was
often difficult to distinguish between
therapeutic effectiveness of medical
interventions and benefits that should
have been ascribed to other causes.
 So the courts have made impassioned
pleas for more patient selfdetermination while at the same time
undercutting those pleas by giving
physicians considerable latitude to
practice according to their own
lights, telling them to “treat each
patient with the utmost care.” The
outcome has NOT been one that
furthers patient liberty in making
decisions about his/her own medical
care.
Problems with the Canterbury ruling:
 results in MUCH wiggle room for the
medical practitioner. The case says:
“When medical judgment enters the
picture and for that reason the special
standard controls, prevailing medical
practice must be given its just due”
(76). What is “just due?”
 the difference between the objective
standard and the subjective standard,
and the short shrift given the latter.
 What does a patient need to know in
order to make a decision, and what
does a medical practitioner need to
know in order to fully inform the
patient? How can the doctor know
exactly what is material to that
patient?
Katz argues that informed consent and
shared decision making are synonymous.
He further argues that the current state of
case law and current medical practices
are not fulfilling the ideals of informed
consent. His assessment: page 77.
The Concept of Informed Consent
Faden and Beauchamp
Faden and Beauchamp offer an
alternative analysis of the whole debate,
one that seems a bit more sophisticated
than Katz. They begin by distinguishing
between two senses of informed consent,
sense1 and sense2.
Sense1: An informed consent is an
autonomous action by a subject or
patient that authorizes a professional
either to involve the subject in research
or to initiate a medical plan for the
patient (or both).
More technically:
An informed consent in sense1 is given
if a patient or subject with:
1) substantial understanding and
2) in substantial absence of control
by others
3) intentionally
4) authorizes a professional
to do intervention I. All substantially
autonomous acts fulfill 1-3, but such acts
may not fulfill 4 if indeed the patient
refuses such authorization. In that case,
we have not informed consent, but
informed refusal.
Thus:
 Katz’s equating of informed consent
with shared decision making is a
mistake. While indeed such a process
may represent the medical ideal, it
doesn’t exhaust the notion of
autonomy.
 While the patient and the doctor may
well reach a treatment decision in a
shared fashion, it needs not in order
to fulfill sense1 of informed consent.
I may well not want to have to think
about my treatment, so I may
willingly and consciously put those
decisions in the hands of the
professionals. I can autonomously
come to you and say: “I don’t want to
have to think about all of this. I trust
you implicitly, do what you think is
best.” That would be an autonomous
decision, and it would fulfill sense1.
 In other words, I can give informed
consent without engaging the process
of shared decision making. I can
authorize the other to make decisions
for me.
Sense2 informed consent is procedural. It
is effective consent. It is policy oriented
and is obtained by following a particular
procedure that is put in place. It does not
refer to autonomy, but neither does it
rule it out. Note that I can have informed
consent in sense1 without having it in
sense2. Note that sense2 may well
require disclosure of risks, while sense1
does not require it.
We should note that informed consent in
sense1 need not conform to sense2, and
that consent in sense2 need not conform
to sense1. So, what do we have? What do
we want?