A Tale of Two Countries: Parallel Visions for Informed Consent in the United States and the United Kingdom
Sones, Ben, Vanderbilt Journal of Transnational Law
In recent years, the proper role of informed consent doctrine in an environment of healthcare cost containment has been a hotly contested legal and policy issue. The purpose of this Note is to probe the current informed consent debate in the United States and the United Kingdom and to draw out the respective roles informed consent ought to play in those two systems. In doing so, this Note draws on the history of the doctrine and several recent scholarly proposals, and offers a modest proposal synthesizing the best aspects of those proposals.
TABLE OF CONTENTS I. INTRODUCTION II. INFORMED CONSENT IN THE UNITED STATES: HISTORICAL BACKGROUND III. WHAT SHOULD INFORMED CONSENT LOOK LIKE IN THE UNITED STATES? A. Specific Informed Consent Proposals in Recent Years i. Mark A. Hall's Theory of Economic Informed Consent ii. Peter H. Schuck's Call for Contextualization iii. Susan M. Wolf's Systemic Vision iv. Joan H. Krause's Statutory Model B. A Synthesizing Approach IV. "INFORMED CONSENT" IN THE UNITED KINGDOM: BOLAM AND ITS PROGENY V. WHAT SHOULD INFORMED CONSENT LOOK LIKE IN THE UNITED KINGDOM? VI. CONCLUSION
The U.S. healthcare system is widely regarded as providing the highest quality healthcare in the world. (1) Its healthcare system, however, is by no means perfect, and it could be argued that it is not the best of all healthcare systems. Although characterized by high quality, U.S. healthcare is also plagued with problems of overspending and relatively low per capita coverage compared to healthcare systems of other developed countries. (2) Therefore, among the primary goals of U.S. healthcare policymakers is to contain healthcare costs while maintaining adequate levels of treatment.
While most would agree that reduction of healthcare costs is a worthy goal, for decades the battle lines have been clearly drawn in the United States between two contrasting visions of healthcare delivery: the economic paradigm and the professional paradigm. (3) Those in the former camp envision a system that allows market forces to perform an automatic regulatory role, such that patients are able to make the kinds of cost-benefit decisions that typically face consumers, while managed care organizations are free to invent delivery structures that encourage cost containment. In other words, the economic paradigm acknowledges a valid economic concern ("Is the treatment worth the cost?") in addition to the traditional medical concern ("Is the treatment beneficial?"). (4) In contrast, those who adhere to the professional model would ask only the latter question. (5)
In the United Kingdom, on the other hand, where healthcare is provided through a public delivery system with an overall expenditure cap, (6) problems of overspending are not prevalent. Despite this, British healthcare quality is adequate to serve the needs of its population. (7) Many reasons have been offered for the lower levels of spending in the United Kingdom, and indeed it is likely that U.S. policymakers could learn some valuable lessons from the British approach that may inform U.S. policy strategies while leaving the United States' tradition of treating medical care as a private good undiminished.
In the midst of these contrasting systems and the varying ideologies pertaining to healthcare delivery stands the problem of informed consent. What role should informed consent play in each of these different systems? Should its role be the same in both nations, or is its proper function in the United States different from that in the United Kingdom? This Note will summarize the current informed consent debate in the United States and the United Kingdom and draw out the respective roles informed consent should play in those two systems. Part II of this Note describes the history of informed consent law in the United States. …