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- Title
Must Consent Be Informed? Patient rights, state authority, and the moral basis of the physician's duties of disclosure.
- Authors
MacDougall, D. Robert
- 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.
- Publication
Kennedy Institute of Ethics Journal, 2021, Vol 31, Issue 3, p1
- ISSN
1054-6863
- Publication type
Article
- DOI
10.1353/ken.2021.0021