Informed Consent without Autonomy
Sulmasy, Daniel P., Fordham Urban Law Journal
A HYPOTHETICAL CASE
Mrs. Mary Carpenter has experienced post-menopausal vaginal bleeding. Her gynecologist, Dr. John, diagnosed endometrial cancer and recommended a hysterectomy. She and her husband, Joe, go to visit Dr. John at his office at Good Samaritan Catholic Hospital to discuss their options. Dr. John explains the indications for the procedure, the nature of the procedure, the risks and benefits, and the alternatives, including second opinions and not having the procedure. In order to ensure that Mary and Joe have understood everything, Dr. John asks them to repeat back what they have heard. After they take a moment to discuss it among themselves, Mary signs the informed consent form, and they make plans for the operation.
Although scenarios like this one occur routinely throughout the United States at Catholic hospitals, public hospitals, for-profit hospitals, and not-for-profit hospitals, no one knows how often the process is conducted properly. It would seem that the same steps would be taken in each of the above settings since the Ethical and Religious Directives for Catholic Health Care require informed consent, just as secular ethics and law do. (1) Consequently, it might also seem as if the question of whether there is anything distinctive about Catholic medical ethics and informed consent is really a non-question.
However, I want to suggest that while it may superficially appear that there is nothing distinctive about a Catholic approach to informed consent, the practice of informed consent in Catholic and secular settings may really be similar only by homology and not by phylogeny. (2) That is to say, the two practices may look the same, but the explanation, origin, and development of informed consent is really very different in Catholic and secular thought. These differences, thankfully for the sake of social harmony, are only apparent at the extreme edges of case analysis. However, because there are occasionally difficult cases, it is worthwhile to understand the distinctions. Furthermore, because the substance of each approach is essentially different, they cannot both be correct.
In this Essay, I will attempt to accomplish two things. First, I will explain why and how the basis for the practice of informed consent in the context of Roman Catholic thought differs from the common secular justification. Second, because Catholic moral thought uses the natural law tradition, I will argue that, philosophically, the justification that I offer is actually the correct one and, consequently, the better one for secular society to adopt. These arguments can be made independently of any explicitly religious assumptions.
I. THE COMMONLY HELD VIEW
The "received," or commonly held, view is that informed consent is an obligation of physicians and other health care professionals founded upon respect for autonomy. (3) Autonomy, in turn, is generally defined as the ability of the individual to be self-determining, to make choices according to her own views, and to determine for herself what is good. (4) This sort of thinking seems to undergird Justice Benjamin Cardozo's famous quote about informed consent: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault...." (5) Under the commonly held view, this applies to Mrs. Schloendorff, the plaintiff alluded to by Cardozo, as well as to the Mary Carpenters of the world.
This is also the view put forth in the contemporary bioethics literature on the ethical justifications for the practice of informed consent. For example, Berg and her co-authors state that, "[t]he values underlying informed consent [are] autonomy and concern for individual well-being." (6) They contend that the moral theory undergirding this view is that "[p]ersons can exercise their wills, their self-ruling capacities, their autonomy. …