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- Title
Reasonable Persons, Autonomous Persons, and Lady Hale: Determining a Standard for Risk Disclosure.
- Authors
Banja, John
- Abstract
Among various kinds of disclosures typically required in research as well as in clinical scenarios, risk information figures prominently. A key question is, what kinds of risk information would the reasonable person want to know? I will argue, however, that the reasonable person construct is and always has been incapable of settling this very question. After parsing the nebulous if not "contentless" character of the reasonable person, I will explain how Western courts have actually adjudicated cases of "negligent nondisclosure," that is, cases in which patient‐plaintiffs allege that their informed consent rights were violated by the failure of their health providers to inform them of reasonably foreseeable risks that subsequently materialized. To support my argument, I will scrutinize the landmark decision by the United Kingdom's Supreme Court in Montgomery v. Lanarkshire Health Board and, in particular, Justice Brenda Hale's concurrence.
- Subjects
DECISION making; INTUITION; PATIENT-professional relations; RESEARCH ethics; RISK assessment; DECISION making in clinical medicine; PATIENTS' rights; DISCLOSURE; PROFESSIONAL standards; PARTICIPANT-researcher relationships
- Publication
Hastings Center Report, 2020, Vol 50, Issue 2, p25
- ISSN
0093-0334
- Publication type
Article
- DOI
10.1002/hast.1099