JOURNAL OF LAW AND HEALTH, Volume 7: Pages 107-130. (1992)


[Previous Section]
[Back to Contents]
[Next Section]


        American common law holds that any individual has the right "to make an informed choice, if competent to do so, to accept or forgo medical treatment."17 Doctors must inform patients of the nature of the proposed treatment, possible alternative treatment procedures, and the nature and degree of risk and benefits involved in accepting or rejecting treatment. Additionally, courts hold that a surgeon who performs an operation without consent, independent of its result, may be guilty of a battery, or if a surgeon obtains an insufficiently informed consent, he may be guilty of negligence.18

        The right to accept or refuse treatment has been recognized under the common law right of self-determination and informed consent.19 Further the state cannot compel an individual to submit to invasion of bodily integrity for the benefit of another person's health:20

The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or take action to save another human being or to rescue ... For our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.21 (emphasis added.)

As our law openly recognizes the individual's right of autonomy over her body, the frequent and often ill-justified use of the substituted judgment standard in cases involving those who have never been competent is particularly disturbing. Courts have frequently used the doctrine of substituted judgment to permit procedures which would not be permitted or consented to by a competent individual. In doing so, courts have violated the constitutional rights of incompetent patients in denying them the right to informed consent guaranteed, except in an emergency, in all jurisdictions in the United States.22

       17 In re A.C., 573 A.2d at 1243.
       18 Id.
       19 See generally In re Conroy, 486 A. 2d 1209 (N.J. 1985)
       20 Bonner v. Moran, 126 F.2d 121 (D.C. App. 1941) (parental consent is required for a skin graft from a fifteen year old boy to be used to benefit his cousin who had been severely burned.)
       21 573 A.2d at 1244 (quoting McFall v. Shimp, 10 Pa. D. & C. 90,91 (Allegheny County Ct. 1978)).
       22 See, e.g., Canterbury v. Spence, 464 F.2d 772, cert. denied 409 U.S. 1064 (1972). Doctor failed to disclose a risk of serious disability inherent in laminectomy operation. Patient became paralyzed and sued doctor for negligent failure to disclose. Id. at 779. "[D]ue care normally demands that the physician warn the patient of any risks to his well-being which contemplated therapy may involve. The context in which the duty of risk-disclosure arises is invariably the occasion for decision as to whether a particular treatment procedure is to be undertaken." Id. 464 F.2d at 781.
        There are two exceptions to the rule of a doctor's duty to disclose. "The first comes into play when the patient is unconscious or other wise incapable of consenting and harm from a failure to treat is imminent. and outweighs any harm threatened by the proposed treatment." Id. at 788. The second occurs in situations where disclosure may cause a patient to become so ill or distraught that she cannot make a rational decision. Id. at 789. "The physician's privilege to withhold information for therapeutic reasons must be carefully circumscribed, however, for otherwise it might devour the disclosure rule itself." Id.

[Previous Section]
[Back to Contents]
[Next Section]

Cite as:
(File revised 14 March 2002)