Megan Wright, Resuscitating Consent

Abstract

The scholarly focus on autonomy and healthcare decision making largely has been on information about medical treatment, and much less attention has been paid to the issue of consent to medical treatment. Indeed, there is an assumption in the law, bioethics, and clinical literature that if a patient has complete information and understanding about a proposed medical intervention, then the patient will choose the treatment their physician thinks is in their best interests. However, despite how well-informed patients are, autonomous healthcare decision making is impossible if patients do not consent to treatment they receive.

True respect for patient autonomy in healthcare decision making means that treatment refusal should always be an option. But there is evidence that patient treatment refusals are sometimes ignored by healthcare providers who may resort to force when treating patients over their objection in hospitals. Scholars have examined treatment over objection in psychiatric, obstetric, and end-of-life contexts, but the law and ethics of medical treatment over contemporaneous objection for the general patient population have received scant scholarly attention.

This Article aims to fill this gap by focusing on medical treatment over contemporaneous patient objection in acute care hospitals. This Article uses this case to revitalize the importance of consent and makes two novel theoretical contributions: 1) autonomy in healthcare decision making is not solely cognitive, but also corporeal, and should be understood to include bodily integrity, and 2) healthcare providers contribute to the erosion of the rule of law when they provide medical treatment over their patients’ objection.

First, autonomy in healthcare decision making has become conflated with an individual’s capacity for rational decision making, which obscures the reality that the exercise of autonomy is mediated by the body. This Article argues that bodily integrity is a necessary component of autonomy, and so violating bodily integrity by treating patients over their objection is inconsistent with respect for patient autonomy. In short, autonomy is impossible if others can do what they want to one’s body. The provision of medical treatment thus should not be provided without patient authorization, even if a treatment refusal is not perceived to be “informed” (i.e., rational).

Second, when healthcare providers treat patients over their objection in the absence of legal exceptions or mandated legal process, they are violating their professional duties to follow the law. This nullification of informed consent laws contributes to an erosion of the rule of private law, which has wider implications for the stability and legitimacy of the legal system. To the extent that the rule of law is valuable, then patients should not be treated over their objection in violation of the law.

Given that treatment over objection is inconsistent with respect for patient autonomy and the rule of law, this Article argues for changes to law and medical practice to ensure that treatments over patient objection do not occur in the absence of legal process that is protective of patients’ bodily integrity. Specifically, this Article argues that states should adopt laws that direct that adults have absolute legal capacity to refuse medical treatment unless a court overrides their decision; that is, the proposed law would prevent healthcare providers from disqualifying their patients from refusing treatment.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: informed consent, autonomy, medical decision making, rule of law, tort, bodily integrity, bioethics, capacity, disability

Megan Wright, Resuscitating Consent (September 1, 2021). Boston College Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3915232