Informed Consent: Defining Limits through Therapeutic Parameters

Abstract

Recent court decisions involving disclosure from and about physicians may signal a new era in informed consent - one that finds comfort in clear demarcations between required and nonrequired disclosures. Two cases in particular, Arato v. Avedon and Faya v. Almaraz, decided respectively by the supreme courts of California and Maryland, involve disclosure of information within the physician-patient relationship that is arguably unrelated to the patient’s medical care. Reaching beyond traditional doctrine requiring disclosure of treatment risks and alternatives, Arato and Faya raise questions about whether disclosure of nonmedical information falls within the scope of informed consent. The cases involve two entirely different factual settings - Arato looked at the duty of a physician to disclose statistical life expectancy information to a cancer patient, while Faya probed the duty of an HIV-positive physician to disclose his seropositive status to his patients. But taken together, these disparate cases project a theory of informed consent which no longer focuses on the ability of patients to make informed choices about treatment, but rather assesses disclosure based on the nature of medical treatment offered and the characteristics of the physician offering the care. With these new cases, it appears that the doctrine of informed consent has take a turn for the schizophrenic, with one coast approving less disclosure and the other demanding more. But carefully analyzed, these cases do create a strand of uniformity in disclosure requirements: If the physician possesses information which is or may be perceived as relating to the patient’s medical treatment, the physician must disclose.