Philosophy 318: Professional Ethics
Theodore Gracyk
 

Outline of Meisel and Kuczewski Essay

The phrase "informed consent" only dates back to 1957, when lawyers introduced it in response to a health care lawsuit. It has developed as an important element in upholding patients' rights to refuse service, including refusal of life-saving treatment.

From the professional's side, it PROTECTS the professional against the claim that the professional has violated the client's autonomy. From the client's side, it upholds autonomy.  It insures that the professional advises but does not make decisions about the patient's treatment. [In other words, it puts the professional in a fiduciary relationship to the client, not a paternalistic one. Because competent clients have a right to decide what happens to them, they also have a right to be informed about the situation. If they aren't informed, manipulation and/or coercion has occurred. ]

PROBLEM: But does it really protect the professional and the client?

General thesis of Mesiel and Kuczewski: Informed consent, when it operates properly, reflects a gradual, shared process of making decisions "so that their goals, thoughts, and evaluations become transparent to each other."

HOWEVER, many myths get in the way of this ideal relationship.

MYTH 1

Giving the patient written info and then getting a signed consent form protects the professional. 

Not true, because if too little information is given, the professional has actually supported the client's case against the professional. The same happens when the information is too complex, or written at a level most people can't understand.

MYTH 2

It's like a Miranda Warning, informing clients of risk.

Not true, because risk is only part of it. Clients are coerced if they aren't told their positive options (including doing nothing!).

MYTH 3

To have informed consent, the professional operates a "cafeteria" (the client can have whatever he/she wants)

Morally mistaken, because this idea moves us to the extreme at the opposite end of paternalism [puts the professional in a mere service relationship]. But fiduciary professionals are advisors, and need not offer options that are, in their judgment (and consistent with the profession), wrong. [Furthermore, this myth violate the "ought implies can" principle -- it's just not true that professionals are able to provide every client with whatever the client wants.]

MYTH 4

Clients must be told everything.

Not true. If this were true, we could just hand the Physician's Desk Reference to medical patients. Professionals must provide a reasonable level of information. (BUT different states define "reasonable" differently!) [This myth violates the "ought implies can" principle]

MYTH 5

Only CONSENTING patients need full disclosure.

Not true. This misunderstands things. The CONSENT is what needs to be informed. Getting consent for an option and then informing clients about that option would eliminate the possibility of informed refusal (see #2 above).

MYTH 6

Informed consent is impossible.

[This myth tries to use the "ought implies can" principle in its favor, reasoning that professionals cannot really inform clients, so they have no obligation to try.] Of course there's a gap between what professionals and clients understand. That's why clients need professionals. But here's a middle ground between no information and too much information (see #4 above). Informed consent involves SHARED COMMUNICATION about values and options.

MYTH 7

Patients MUST be told all relevant information.

Not true. We can waive our rights. They might waive the right to decide (allowing for paternalism) or waive the right to be informed (because their values are incompatible with certain options, so they do not want to discuss them). 

[NOTICE THE PROBLEM HERE: If the clients do not want to discuss an option, but the professional believes it is the best option, how can the professional operate with integrity? See Kupfer and Klatt on this topic.]

MYTH 8

Professionals have "therapeutic privilege" -- Information can be withheld if the professional thinks it is best for the client

Morally very questionable, because this ignores the need to get the client to waive their right to information. It takes us right back to paternalism (the professional deciding what is best for the client, without giving the client the opportunity to discuss and decide). 

 

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            Last updated March 26, 2008