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A Prisoner's Constitutional Right to Medical Information: Doctrinally Flawed and a Threat to State Informed Consent Law

54 Pages Posted: 1 May 2010 Last revised: 7 Jun 2010

Robert Gatter

Saint Louis University - School of Law

Date Written: May 1, 2010

Abstract

White v. Napoleon and its progeny recognize a substantive due process right to receive the disclosure of medical treatment information. While each case involves a prisoner receiving treatment while in custody, the constitutional right described in those cases is not limited to prisoners. Instead, the right is described as belonging to all individuals. Consequently, this line of cases is poised to interfere with the disclosure standards that operate in state informed consent law in the many instances where state action exists. This Article argues that the substantive due process right recognized in White should be overturned. The right is based on an erroneous assumption that the Constitution protects an interest in autonomous medical decision-making rather than simply an interest in avoiding a battery. It also will erode valuable heterogeneity in state disclosure standards and subject those standards to the politics of substantive due process. Third, it is not necessary. Other means exist to protect the interest of prisoners in receiving material treatment information and to address states with uniquely inadequate disclosure standards.

Keywords: Informed Consent, Prisoners, Substantive Due Process, Health Law

Suggested Citation

Gatter, Robert, A Prisoner's Constitutional Right to Medical Information: Doctrinally Flawed and a Threat to State Informed Consent Law (May 1, 2010). Wake Forest Law Review, Vol. 45; Saint Louis U. Legal Studies Research Paper, 2010-10. Available at SSRN: https://ssrn.com/abstract=1598604

Robert A. Gatter (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

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