Must Consent Be Informed? Patient rights, state authority, and the moral basis of the physician's duties of disclosure

Authors

D. Robert MacDougall, CUNY New York City College of TechnologyFollow

Document Type

Article

Publication Date

9-2021

Abstract

Legal standards of disclosure in a variety of jurisdictions require physicians to inform patients about the likely consequences of treatment, as a condition for obtaining the patient’s consent. Such a duty to inform is special insofar as extensive disclosure of risks and potential benefits is not usually a condition for obtaining consent in non-medical transactions.

What could morally justify the physician’s special legal duty to inform? I argue that existing justifications have tried but failed to ground such special duties directly in basic and general rights, such as autonomy rights. As an alternative to such direct justifications, I develop an indirect justification of physicians’ special duties from an argument in Kant’s political philosophy. Kant argues that pre-legal rights to freedom are the source of a duty to form a state. The state has the authority to conclusively determine what counts as “consent” in various kinds of transactions. The Kantian account can subsequently indirectly justify at least one legal standard imposing a duty to inform, the reasonable person standard, but rules out one interpretation of a competitor, the subjective standard.

Comments

Final accepted version of MacDougall, D Robert. 2021. "Must Consent Be Informed? Patient rights, state authority, and the moral basis of the physician's duties of disclosure." Kennedy Institute of Ethics Journal 31 (3): 247-270, doi:10.1353/ken.2021.0021.