The Legal Doctrine of
Clinicians often respond to ethical issues by first inquiring as to what the relevant law dictates. The instinct is a prudent one. It is not very sensible to discuss ethical options that the law prohibits, or attempt to fashion a response when the law has already provided one and insists upon it.
As already noted, however, the law regarding informed consent varies across jurisdictions and countries, so in a global sense there is no single and settled sense of the law to explicate, not even on the level of basic principles and criteria. What will now be provided, instead, will be a general portrait of the law on informed consent in the United States, where a legal view of informed consent is the most highly evolved. Even this, however, will remain at most a useful fiction, as jurisdictions within the United States provide different formulations of key principles and criteria. In what follows, then, reference to the "legal doctrine" on informed consent should be received as referring to just such a fiction which, however useful for our purposes here, is no substitute for a detailed sense of the law on informed consent in any specific jurisdiction.
One of the uses of the fictitious "legal doctrine of informed consent" presented here will be to gain a first approximation of what a model of informed consent might look like—that is, what are its goals and agendas, its operating principles and criteria, and what types of information it tends to insist on conveying. Presentation of this "legal doctrine" will also allow us to investigate whether the law provides an ethically and clinically adequate model of informed consent—that is, whether the law comprehensively identifies and keys to the proper goals and agendas, whether its methodology and criteria appear adequate to capture these goals, and whether its underlying assumptions are clinically realistic. Finally, this chapter will enable us to identify ways in which the legal doctrine of informed consent simply does not