Section II: DISCLOSURE
1-14. DISCLOSURE STANDARDS FOR INFORMED CONSENT
a. Two Different Standards Plus Hybrids. It is neither feasible nor desirable
to tell the patient everything that could possibly happen as a result of treatment
decisions (in other words, full disclosure). Therefore, the courts have developed two
standards for determining the adequacy of a physician's disclosure: the professional
practice standard and the reasonable person (material risk) standard, with two
variations (the objective and subjective tests). Some states have developed hybrids of
these tests. Although a number of disclosure standards do exist, the physician must
comply with disclosure requirements of state law.
b. Professional Practice Standard. The courts in many states use the
professional practice standard. In those states, the physician's duty is to disclose what
any reasonable medical practitioner would disclose in the same or similar affair. (This
standard supports the institutional model of consent, discussed earlier, in which the
physician transmits a body of information in an essentially one-way communication.)
Medical standards, rather than the patient's rights, are the operative guidelines for
disclosure under this standard.
professional practice standard of disclosure: a standard of disclosure
that requires the physician to disclose what any reasonable health care
provider would communicate in the same or a similar circumstance.
There are some problems with this standard. First, it assumes that a customary
standard exists. In many medical situations a standard may not exist regarding the
communication of information. Secondly, if a standard of disclosure does exist for a
certain procedure but is set too low, then the patient's right to information is undermined
by the legal standard. And finally, and most importantly, the professional practice
standard can undermine the patient's right of autonomous choice. This standard
reflects the assumptions, values, and goals of a medical mindset. But, decisions for or
against medical care are, in large measure, no medical judgments made by the patient,
and are rightly the domain of the patient. It may also be questioned whether physicians
really know what information is in the best interests of the patient. The weighing of risks
against a patient's unique set of subjective beliefs, fears, and hopes cannot be
measured through a professional standard. What is important to one patient may not be
important to another.