a. Consent, a Free and Rational Act. The ethical basis for consent is respect
for persons, their right to autonomy (self-determination), and the protection of those
with a diminished capacity for protecting their own interests, that is, children and
incompetent adults. Legal doctrine defines consent as indicated below.
Consent: the free (uncoerced) authorization of the patient to make his or her
own decisions as to whether or not, and how to receive competent medical care.
ETHICAL BASIS OF CONSENT
Respect for a person's principle.
Autonomy (self-determination) principle.
Protection of those with diminished.
autonomy (children, incompetent adults).
Voluntary, informed consent from a patient or an authorized patient
Figure 1-1. The legal right to informed consent has an ethical basis.
b. Consent Based on Substantial Knowledge. The law requires that the
patient or patient's representative be given sufficient information concerning available
choices so that the consent is an informed consent.
Informed consent: the free (uncoerced) authorization of a procedure that is
given by a competent individual, having sufficient information.
In most circumstances, authorization is secured from the patient or the patient's
representative who gives express or implied consent. If the patient or patient's
representative decides not to consent, the examination or procedure usually cannot be
performed. However, in several circumstances, the law overrides the decision and
provides authorization for involuntary treatment, such as civil commitment for treatment
of certain mental illnesses and substance abuse.
a. Obtaining Consent and Informing the Patient. The legal requirement to
obtain informed consent imposes two duties on the physician: the duty to obtain
consent and the duty to inform. Though related, a trisection in either of these two areas
(failure to obtain consent or failure to inform) constitutes distinct and separate torts.