Academic journal article Issues in Law & Medicine

The Doctrine of Informed Consent: A Tale of Two Cultures and Two Legal Traditions

Academic journal article Issues in Law & Medicine

The Doctrine of Informed Consent: A Tale of Two Cultures and Two Legal Traditions

Article excerpt

ABSTRACT: In this article, the author compares and contrasts the notion of informed consent in medical decision making in the Western legal system with the traditional Jewish biblical legal system. Walter critically examines the philosophical underpinnings of disease and medical healing in both legal systems, and describes the practical consequences that emanate from the different ideologies in terms of the individual's rights of choice of treatment. She explains that the Western system is predicated on notions of individual autonomy and self determination. Patients therefore have the autonomous ability to select and direct their own medical therapy. By contrast, the traditional biblical system of law is based on the concept that the body does not belong to the individual. Instead, the body is given to man by God as a trust to respect and preserve. Therefore, the individual patient "has no absolute right to control his body and ... he has no real decision making power as to medical treatment choices." In the Jewish biblical tradition, consent is not necessary for obviously beneficial or obviously non-beneficial procedures; consent is only necessary in decisions with uncertain outcomes or when making choices between equal options. Patients are encouraged to seek the counsel of religious authorities and to conform to rabbinical interpretations of the traditional Jewish law.

The concept of self determination, predicated on the assumption that man is master of his destiny, is deeply rooted in our Western legal system, as it mirrors the fundamental Western value of respect for the individual and his choices.(1) In the context of medical decision making, Judge Cardozo expanded upon the concept of self determination in Schloendorff v. N.Y. Hospital(2) by noting that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body."(3) Based on this statement of principle, judicial decisions have spawned the legal principles of consent which eventually developed into the doctrine of informed consent.(4) Implicit in this strong deference for individual autonomy is the belief that man has the right to be free from nonconsensual interference with his person.(5) The medical provider, by corollary, must respect the individual's unfettered right to choose his course of medical treatment, including the right not to pursue treatment. Many states have, in fact, enacted legislation which, by statute, formalizes the doctrine of informed consent.(6)

However, non-Western legal systems do not necessarily share this fundamental Western value which exalts man, and indeed, do not even recognize the precept as a legitimate intellectual or philosophical point of view. One such instance is the Jewish tradition based on biblical law and its Rabbinic interpretation.(7) The biblical system of law, which governs all aspects of human behavior, encompasses within itself an elaborate Code of rules ("Code") which guides the individual, qua individual, as well as his relationship with others in society. Conformance with this Code of behavior is purely voluntary, as enforcement measures are not available to ensure compliance. In effect, this legal system is a religious Code of law with which the individual voluntarily complies. An adherent faithful to this Jewish legal system agrees willingly to submit to this Code and to guide his personal life and behavior in accordance with these precepts.

The Jewish biblical tradition assumes, first, that the body does not belong to the individual, but is instead given to him by God as a trust to respect and preserve.(8) The individual has no absolute right to control his body, and therefore he has no real decision-making power as to medical treatment choices. Second, bodily suffering, in fact, may sometimes be viewed as a beneficial, or even a necessary event caused by the Divine as a message to man. Consequently, decision making with regard to medical treatment becomes not a matter of individual, personal choice. …

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