Correspondence and reprint requests: Irene Switankowsky, Department of Philosophy, University of Waterloo, 200 University Avenue West, Waterloo, Ontario N2L 3G1, Canada.
A physician obtaining patient consent is considerably different from a patient providing an informed consent. (1) If the patient agrees to but does not comprehend the medical treatment, consent is merely obtained. To provide consent, on the other hand, is to ensure that the patient understands the medical procedure and therefore gives a truly informed consent. If the patient does not give an informed consent, the treatment administered is potentially illegal because it could be considered an assault under criminal law. On a philosophical level, uninformed consent undermines a patient's moral right to self-determination. With informed consent, the patient gives the physician express permission to proceed with a particular medical treatment. This decision should be consistent with the values to which the patient adheres and which establishes them as an autonomous person. Thus, the issue of informed consent is not merely a legal one of signing a consent form, but is also a moral one of informing a patient of all the relevant medical treatments.
In this paper, we assume that patients do indeed have rights, and accordingly we will clarify what rights are involved in the obtaining and providing of informed consent, and consider what conditions must be satisfied to achieve an informed consent. We also articulate a decision procedure which, when adhered to by the physician and patient, will increase the probability of attaining informed consent.
The Rights of the Patient
Positive and Negative Rights
As medical practice emerges from the days of physician paternalism and enters into a new phase of patient "consumerism," (2) the rights of the patient are the central focus in the issue of informed consent. Of the various definitions of rights, two types will concern us here--negative and positive rights. A negative right guides our behaviour by telling us what not to do, such as not interferring with others. The Ten Commandments, for example, advise against specific acts. Conversely, a positive right informs us about behaviour we are obliged or ought to do, such as holding a door for someone unable to do so for themselves. Both types of rights entail duty. For example, whenever S has a right to do x, we can say that R has a duty (or obligation) either not to interfere or to assist with S's right to do x. The negative right of the patient, which the physician must observe, is manifested as a duty of non-interference. When we speak of a patient's right of informed consent, we assert that the physician has a duty not to interfere with a patient's autonomous decision. Physician interference may take several forms, such as personal bias towards a particular medical treatment, coercion, and persuasion. If patient autonomy is not preserved, the power to coerce and the force of physician paternalism may expose the patient to greater harm--an action diametrically opposed to the principle of "noharm" implicit in the Hippocratic Oath. However, a physician is obliged to ensure that a patient provides informed consent for a medical treatment by determining whether the patient has made an autonomous decision. Yet, a patient can only exercise autonomy when both the physician and the patient meet specific conditions.
Necessary and Sufficient Conditions For Informed Consent
Generally, a necessary condition means that whenever an effect B occurs, A must also occur. For example, if a forest burns, combustible material must have been present, as well as oxygen. In the medical context, a legal document must be signed for an informed consent to occur. However, the consent form alone is not a sufficient condition for obtaining a truly informed consent because a patient has positive rights that must be adequately addressed. …