Informed Consent

Basis of Doctrine of Consent

In the United States, Judge Benjamin Cardoso in 1914 grounded consent on the patient's right of self-determination, and in the United States subsequent cases continued this view that physicians had an obligation to obtain their patients' consent on the basis of the patient's right to self-determination. Great Britain and Australia consider consent as grounded on a physician's duty of care, not the patient's right of self-determination.

Battery versus Negligence

In the United States, the failure of a physician to secure a patient's consent prior to a medical intervention was viewed in terms of a “battery” or intentional harm to the patient. Courts in the United States continued to view cases of lack of consent as battery until 1960, at which time the Kansas Supreme Court in Natanson v. Kline argued that consent should be considered on a theory of negligence on the part of the physician. In the United States, the State Supreme Court of Pennsylvania continues to hear informed consent cases brought against physicians in terms of battery. In Great Britain, consent has been considered in terms of negligence on the part of physicians.

Professional Standard

From 1767 to 1972, there was only one standard of consent and informed consent, the professional standard. Under a professional standard, a physician is judged in terms of whether or not he or she secured a patient's consent or informed consent in terms of whether physicians in the physician's community of peers would have obtained consent or informed consent. And the information that a physician discloses (or does not disclose) to a patient is judged in terms of whether a physician in that physician's community of peers would have disclosed that information to his or her patient. Thus, from 1767 to 1972, physician testimony in the courtroom determined how a jury was to decide a case. The jury would be asked to decide a question such as the following: Did the physician obtain consent from the patient in terms of how physicians in his or her community of peers would have obtained consent? And in terms of the information provided, did the physician provide that information that physicians in his or her community of peers would provide to their patients, based on the physicians' testimony as given in the courtroom.

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