Defining a foolproof protocol for informed consent within medicine requires courts to quantify something that cannot be quantified. The amount of ambiguity within this court decision may have concerning consequences for patients. The court is overall reasonable in setting precedent for this complex issue. However, potential problems remain, both as a function of the inherently convoluted topic of informed consent and of certain gaps within the court’s ruling.
How much information physicians should disclose, when, and to whom, leaves room for debate. The court states the information needs to be “relevant” to the case and a reasonable person who would work on it must approve of this. The “relevance” of information is undeniably ambiguous, but perhaps this is impossible to cover with a single law, as the risks for craniectomies require more thorough explanation than those of wisdom teeth surgery, for example. The court provides an adequate incentive for physicians to notify patients of all potential, relevant risks: the patient can hold the physician liable in court for something that the physician did not warn them of and that had causal relationship from their procedure.
There remain many problems with the wide latitude of behavior legally protected by therapeutic privilege. It is hard to argue that this does not become a direct threat to patient autonomy. The lack of stipulations makes patients vulnerable to abuse, as the physician can take advantage of the patient with legal justification. Invoking this privilege during treatment for a patient with anxiety and depression who may experience distress is wrong, as they are still competent, autonomous beings. In extremely rare cases, such as delusional parasitosis, the use of therapeutic privilege may be appropriate. The court doesn’t specify the legal conditions when it is permissible to withhold information from the patient. The court seems to try to distinguish between non-disclosure and paternalism, but really what is the difference in practice?
Another potential issue arises in the court’s assertion that physicians should not have to warn of inherent risks of surgery, such as infection, as people of “average sophistication” should already know such things. While in many cases this may be true, there is no algorithm for measuring someone with “average sophistication.” Infection is a serious complication and it is the patient’s right to be told.
There are bound to be points of contention in this court decision, as putting this principle into action ultimately becomes very legally intricate in the world of medicine.