Legal Decisions

Early in the twentieth century, a landmark case decided in the Court of Appeals of New York helped to solidify the role of individuals in making medical decisions for themselves.¹ Mary Schloendorff had consented to have an examination of a uterine fibroid performed under anesthesia but specifically did not consent to its removal while a patient at New York Hospital. While she was under anesthesia, the surgeon removed her tumor without her consent.¹ In the opinion following the legal action brought by Mrs. Schloendorff, future U.S. Supreme Court Justice Benjamin Cordozo wrote that “[e]very human being of adult years and sound mind has the 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, for which he is liable in damages, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained.”²

The term informed consent was used for the first time in a legal brief filed in Salgo v Leland Stanford Jr University Board of Trustees in 1957.³ Martin Salgo suffered permanent paralysis as a result of translumbar aortography, and he sued his physicians for failing to warn him about the risk for paralysis.³ The court found that the treating physicians had a duty to disclose “any facts which are necessary to form the basis of an intelligent consent by the patient to proposed treatment. Likewise the physician may not minimize the known dangers of a procedure or operation in order to induce his patient’s consent.”⁴ In this decision, the duty of the physician to explain the risks and benefits, as well as alternative therapies, is highlighted and proves to be an essential component of true informed consent.

These court decisions and the many that followed set the framework for the concept of informed consent in terms of consent to treatment. The principles of autonomy and competence are introduced in Schloendorff, and the process of clearly explaining the risks, benefits, and alternatives for each intervention is outlined in Salgo.

Autonomy

According to Faden and Beauchamp,³ autonomous actions are truly autonomous only if the subject acts (a) intentionally, (b) with understanding, and (c) without controlling influences. Whether an action is done intentionally is an objective determination. It is the other two conditions that truly determine the autonomous action and thus are so vital to the principle of informed consent. Patients have a wide variability in their understanding of information of diagnoses, procedures, risks, or prognoses.³ It is the responsibility of the health-care provider to determine what is relevant and to communicate this in a way that the subject is able to comprehend.

In addition, practitioners must not coerce patients to consent; “the concept of informed consent presupposes that patients have moral and legal rights to refuse any medical intervention.”⁵ It is the obligation of the person obtaining the informed consent to do so with the understanding that the patient has the right to refuse the intervention. Often the patient’s refusal may be due to fear, lack of understanding, or denial of the necessity of an intervention. Reassurance, clear explanation of the relevant information, and compassion are important in discussing any intervention with a patient. This takes time and effort on the part of the physician but often will lead to a more favorable situation. It may also mean that the subject fully understands the intervention, the need for the intervention, and the consequences of not giving permission for the intervention and still does not wish to go through with the intervention.