British Journal of American Legal Studies, Vol. 1, p. 551 (2012)
38 Pages Posted: 15 Nov 2012
Date Written: November 14, 2012
Under the doctrine of informed consent, physicians owe patients a duty to disclose to them all material risks of a contemplated treatment or procedure. While the doctrine is generally well accepted in the United States and several other common law countries, it has had a rockier reception in other places. This inconsistency is on its face surprising, given that the doctrine stems from the principle of patient autonomy – a principle to which most countries supposedly subscribe. Unless the patient is in possession of sufficient information, that autonomy may be compromised. But the inconsistency is less puzzling when one considers the difficulty of applying the doctrine to the actual physician-patient relationship.
This article examines the doctrine in four countries that have had different responses to informed consent: the United States; Great Britain; Canada; and Taiwan. This comparison highlights the compromises that each of these jurisdictions has made to the foundational principles of informed consent, and then proposes a way forward by borrowing heavily from the Canadian model.
Keywords: informed consent, health law, physicians, patient autonomy
JEL Classification: K32, K13
Suggested Citation: Suggested Citation
Culhane, John G. and Wu, King-Jean and Faparusi, Oluyomi and Juray, Eric J., Toward a Mature Doctrine of Informed Consent: Lessons from a Comparative Law Analysis (November 14, 2012). British Journal of American Legal Studies, Vol. 1, p. 551 (2012); Widener Law School Legal Studies Research Paper No. 12-37. Available at SSRN: https://ssrn.com/abstract=2175775