Toward a Mature Doctrine of Informed Consent: Lessons from a Comparative Law Analysis

British Journal of American Legal Studies, Vol. 1, p. 551 (2012)

Widener Law School Legal Studies Research Paper No. 12-37

38 Pages Posted: 15 Nov 2012  

John G. Culhane

Widener University - Delaware Law School

King-Jean Wu

National Taiwan University

Oluyomi Faparusi

Widener University - Delaware Law School

Eric J. Juray

Widener University - Delaware Law School

Date Written: November 14, 2012

Abstract

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

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

John G. Culhane (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
(302) 477-2107 (Phone)
(302) 477-2255 (Fax)

King-Jean Wu

National Taiwan University ( email )

1 Sec. 4, Roosevelt Road,
Taipei 106, 106
Taiwan

Oluyomi Faparusi

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Eric J. Juray

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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