Background

The notion of consent itself can be traced back to the laws of battery and trespass. In 1914 Judge Benjamin Cardozo likened assault to trespass of the body. He wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” (Schloendorff v. Society of NY Hosp, 1914). Thus, began the legal analysis of the notion of consent.

The issue of consent—and the circumstances under which a patient may be said to have consented to certain medical treatment—is an important one for physicians. Without patient consent to treatment, physicians may be sued for battery—the violation of a person’s right to be free from unwanted touching (McNeil v. Brewer, 1999*; Syoboda et al., 2000). Subject to certain exceptions, such as emergencies that pose threats to a patient’s life, any willful touching of another is unlawful without valid consent from the individual or another authorized to consent on that person’s behalf (Syoboda et al., 2000). The requirement of consent primarily protects the patient’s bodily integrity (Syoboda et al., 2000).

Informed Consent

Consent, however, gives the physician a privilege that protects him or her against liability for this tort as long as the patient is informed of the nature and consequences of treatment and gives knowing and intelligent consent to the proposed treatment the physician intends to provide (Schlam and Wood, 2000). “Informed consent” is designed to protect the individual’s autonomy in medical decision making; in other words, it is a real-world application of the adage that “every person has the right to determine what is done to his own body” (Schlam and Wood, 2000).

In turn, physicians are obligated to provide the patient with a “reasonable amount of information” for the patient to be able to make an informed decision (Schlam and Wood, 2000). It is worth noting here that some jurisdictions reject this approach for one that shifts the focus to what a “reasonable patient would need to know,” a standard that does not require expert testimony and thereby eases a patient’s burden of proof (Altman et al., 1992; Schlam and Wood, 2000). In other words, the patient must know for what he or she is giving consent (Syoboda et al., 2000). Informed consent is the “autonomous authorization of medical intervention … by individual patients” (Beauchamp and Faden, 1995; Syoboda et al., 2000). It can really only follow after a discussion regarding the “nature of the proposed treatment procedures, possible alternative treatments, and the nature and the degree of the risk and benefits involved in accepting or rejecting treatment.” Consent is then considered “informed” when it is given “knowingly, competently, and voluntarily” (Schlam and Wood, 2000). It is worth noting, however, that if a physician doesn’t provide enough information to make an informed treatment and the patient consents, the physician may still be liable for negligence (Schlam and Wood, 2000).

Knowingly means that the physician has a duty of disclosure to provide adequate information to the patient in a manner that the patient can comprehend (Syoboda et al., 2000). “Adequate” means “the amount and kind of information that the average person in the patient’s position would want to have in reaching an informed decision” (Syoboda et al., 2000). This usually means that the clinician must fully explain the proposed procedure, the expected short-term risks and long-term consequences, the available alternatives and their risks and benefits, and the consequences of declining or delaying treatment (Syoboda et al., 2000). In short, physicians must disclose all material information; i.e., all “information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure” (Arato v. Avedon, 1993; Syoboda et al., 2000).

Competently means that the patient has the capacity, or ability, to understand “information relating to treatment decisions and to appreciate the consequences of a decision” (Syoboda et al., 2000). That a decision be made competently requires physicians to assess whether a patient can both understand the relevant medical information and make a rational decision based on that information (Syoboda et al., 2000).

The voluntariness requirement simply protects the patient’s right to make health care decisions free from manipulation or undue influence (Syoboda et al., 2000). Because of the power imbalance between a physician and the patient and the sometimes vulnerable state of the patient, there is a great danger of undue influence; as such, the manner in which physicians present information can significantly influence the relative importance the patient may attach to certain information and could persuade the patient to favor the option emphasized by the physician. Accordingly, physicians have a duty to distance themselves from their personal preferences and allow their presentation of information to reflect an objective assessment of the various interests at stake for the patient (Syoboda et al., 2000).

Background: Consent by Minor

As outlined above, competent adults are entitled to make decisions regarding their medical care themselves. But the framework of consent changes if the patient is a minor (Syoboda et al., 2000). The legal framework of consent highlights the courts’ recognition that the family must be protected by a broad right of privacy, limiting government interference in the intimate family workings (Watts, 2005). That right of privacy, however, is balanced by the fact that the state is permitted, in certain circumstances, to make determinations about the best interests of the child (Watts, 2005). When such a conflict arises—perhaps relating to the type, length, and necessity of medical treatments for a child, the question is about who possesses the ultimate right to make a child’s medical decisions (Watts, 2005). When does a minor have the right to have a voice in medical decisions regarding his or her own well being? Even if the minor has a voice, when is that voice determinative?

An analysis of a minor’s right to participate in his or her health care decisions reflects a huge variation from state to state over the amount, if any, of deference given to a minor to consent or refuse medical treatment (Watts, 2005). Traditionally, the view was that parents had total autonomy over a child’s medical care. That idea can be traced back to a time when children were considered the property of their parents (Schlam and Wood, 2000). Before that time, children had no rights, and parents reared their children without government restraint (Schlam and Wood, 2000). The Supreme Court has articulated several justifications for total parental autonomy (Parham v. JR, 1979; Watts, 2005). Primarily, they rest in the presumptions that children lack the maturity, experience, and capacity to make appropriate decisions and that the “natural bonds of affection” between parents and children will lead parents to act in the best interest of their children (Parham v. JR, 1979; Watts, 2005). Since that time, however, the Supreme Court has modified the notion of absolute parental autonomy in order to account for the interest of minors, particularly in the arena of health care decisions (Watts, 2005). The idea is that there are better means for protecting parental autonomy than disregarding the desires of the children (Hawkins, 1996; Schlam and Wood, 2000). Jurisdictions vary in the deference given to parental autonomy over a child’s health care (Watts, 2005).

Typically, the current view is that for most treatment provided to children, informed consent is provided by parents or guardians (Health L Prac Guide, 2008). Stated another way, parental permission for medical procedures on children, when appropriate and properly secured, constitutes an exception to the general requirement of personal consent to medical treatment (Secretary, Dept Health and Comm Ser v. JWB and SMB, 1992; Syoboda et al., 2000). In turn, parents are required to make decisions that are in the best interest of their children; they may not make decisions for their children that are likely to cause them physical harm or otherwise impair their healthy development (Syoboda et al., 2000). Parents, therefore, should be viewed as agents for their children, required to make decisions regarding medical interventions for their children in a manner consistent with the child’s best interest. Medical professionals, in turn, owe a duty to their minor patients to assist parents in making decisions that conform to that standard (Syoboda et al., 2000). To assist “parents in making decisions that comport with their child’s best interest, medical professionals must satisfy the same requirements of informed consent that apply to decision-making by adults as outlined above (Syoboda et al., 2000). In short, a minor has the right to consent to medical treatment without third-party involvement in two key situations. First, an unemancipated minor may consent to treatment of specific types of conditions for which either the state legislature or the courts have granted such authority (Vukadinovich, 2004). Such authority applies to any minor who is capable of giving meaningful informed consent and who has one of the specified medical conditions; in other words, if the minor can be said to be a “mature minor” (Vukadinovich, 2004). Secondly, a minor who qualifies as emancipated, either by court order or on other grounds, may consent to medical treatment as if he or she were an adult (Vukadinovich, 2004).