Jay Katz

Reflections on Informed Consent: 40 Years After its Birth

Dr. Jay Katz a physician and law professor at Yale University invites fellow physicians to set aside their dislike of informed consent and consider both its origins and possible future in the field of medicine. He notes that informed consent with its initial pronouncements on patient roles in medical decision- making surfaced in 1957 in US Supreme Court case entitled Salgo vs. Leland Stanford Jr. University Board of Trustees. The notion was expanded by Natanson vs. Kline in 1960 and by Cantenbury vs. Spence in 1972. Informed consent was not designed to serve as a medical blueprint for interactions between physicians and patients says Katz but rather to push physicians to articulate medical standards of disclosure that would better conform to basic legal principles. However the medical profession did not do this and the task of fashioning a doctrine responsive to both the realities of medical practice and the requirements of law remains to be done. Thus Katz advocates a reexamination of the unitary scope of the informed-consent doctrine in light of the diversity of medical practices. He argues that: disclosures may have to be limited to the most essential parts; that the fullest disclosures should be enforced and shared decision making should be an absolute requirement for acute disorders; that the pace of disclosure may have to be slower for conditions in which the prognosis is dire and a fatal outcome is likely; and informed consent could be dispensed with if the patient agrees for relatively minor time-limited disorders.

`Ethics and Clinical Research' Revisited : A Tribute to Henry K. Beecher

The doctrine of informed consent, borrowed from the law of torts, cannot be readily transplanted into therapeutic settings. The broader, as yet unrealized, idea of informed consent, which suggests that parties must make decisions jointly, should guide interactions between physicians and patients or investigators and subjects.

Human Sacrifice and Human Experimentation: Reflections at Nuremberg

“Life is short, the art long, opportunity fleeting, experiment treacherous, judgment difficult,” Hippocrates once said. On the fiftieth anniversary of the Doctors’ Trial, which charged Nazi physicians with “crimes against humanity” and violations of Hippocratic ethics in the conduct of human experimentation, I want to begin with Hippocrates’ observation that to “experiment [is] treacherous.”

Disclosure and Consent

In my admittedly limited reading on genetic counseling, I have been struck by genetic counselors’ preoccupation with the question of how much authority they should exercise in the counseling process; similar concerns rarely surface in the literature of other professions. Most striking is the debate over whether genetic counselors should provide only “information” to their counselees, allowing the latter to decide what course of action to follow, or whether counselors should guide in a variety of ways the decision-making process. At least in theory, the prevailing climate of opinion among genetic counselors seems to favor the former position, influenced to a considerable extent by second thoughts over earlier eugenic practices of proselytizing for “improvements” in society’s genetic stock. Such strictures on guidance-persuasion are quite revolutionary, particularly when contrasted with traditional medical beliefs that patients should trustingly follow doctors’ orders.

Can Principles Survive in Situations of Critical Care

Law’s doctrine of informed consent, now twenty-six years old, has as yet not significantly improved the quality of physician-patient decision making. The doctrine, however, has engendered an unsettling and unsettled debate about the respective rights of physicians and patients to make choices for and with one another. That informed consent’s fate would for a long time remain uncertain was foreshadowed in Natanson v. Kline, the first opinion to construe in some depth this novel common law doctrine. Justice Schroeder, 64 after boldly asserting that patients’ rights to self-decision were to be found in Anglo-American law’s “premise of thorough-going self-determination that [considered each man] to be master of his own body” [12], departed all too quickly from this premise by allowing physicians to retain considerable, if not sweeping, authority over patients’ medical lives.