52 Pages Posted: 18 Dec 2010 Last revised: 25 Dec 2010
Date Written: Spring 1999
The doctrine of informed consent to health care treatment arose in the 20th century grounded in a model of health care delivery that featured the individual doctor and patient operating largely without systemic cost constraints. This dyadic vision of informed consent no longer fits the realities. With the rise of complex health care delivery and funding models such as managed care designed to control costs, the doctor and patient function in a systemic context providing multiple points at which information is conveyed to the individual health plan subscriber-patient and that person’s consent is sought. This sequence of information-giving and consent-seeking starts with an offer of employment (with its concomitant choice of health plan or plans), then progresses to the subscriber-patient’s choice of a particular health plan (if more than one is offered), then to a choice of clinic and physician, and only then reaches the treatment decision. Yet at each successive point in this sequence, the subscriber-patient makes a choice that bears on the ultimate treatment options. Often without knowing it, he or she is agreeing to a system of cost-constraints and physician incentives that may profoundly affect the ultimate treatment choices offered.
A number of scholars have argued that in the context of a health care system striving to contain costs, such as a managed care system, the subscriber-patient’s choice of health plan constitutes consent to the limited roster of treatment options the plan offers, so that at the later point of treatment decision, the physician need not inform the subscriber-patient of the full menu of medically relevant options, only those covered by the plan. This argument in effect shifts from a dyadic vision of informed consent and treatment decision-making to an organizational vision. However, this argument fails to embrace the full systemic context. A systemic vision of informed consent would analyze the full succession of points at which information is conveyed and a choice elicited from the subscriber-patient. This article shows that only analysis on this scale captures the succession of information-transfer and consent-eliciting points that bear on the ultimate treatment options and decision. Moreover, this system is not closed; subscriber-patients may go outside their health plan to pay out-of-pocket or otherwise fund treatments not covered by the plan.
This systemic analysis of informed consent shows why subscriber-patients should not be deemed to consent at the point of health plan enrollment to a truncated information set at the point of treatment decision-making, a set that leaves out those treatment options not covered by the plan. Instead, physicians should present all medically relevant treatment options. Indeed, physicians are often in the best position to clarify which treatments are covered by the plan and which will require the subscriber-patient to find other funding. The article articulates a systemic theory of informed consent and shows how only this larger vision does justice to the realities of health care delivery at a time of health care reform and systemic innovation to control costs.
Keywords: Informed consent, health plans, health care organizations, managed care, managed care organizations, HMOs, health law, health insurance, health economics, health care, health care reform, health care delivery, health care systems, systems theory, information transfer, disclosure, physician decisions
Suggested Citation: Suggested Citation
Wolf, Susan M., Toward a Systemic Theory of Informed Consent in Managed Care (Spring 1999). Houston Law Review, Vol. 35, No. 5, pp.1631-1681, 1999. Available at SSRN: https://ssrn.com/abstract=1726588