Informed Consent in German Medical Law: Finding the right path between patient autonomy and information overload

Abstract

Informed consent in German medical law has a long and controversial tradition. For more than 100 years, medical treatment – even where medically indicated and performed under medical standards – constitutes an act of personal injury and therefore requires the patient’s consent. The basis for this sustained understanding was the personal injury doctrine developed in 1894 when the Reichsgericht stated that only the patient’s will could exclude the offence of personal injury resulting from medical treatment. In the following decades, the courts supplemented this decision by stating that consent would be valid only if the physician has provided the patient with the necessary information to make an informed decision. Since the patient’s informed consent to medical treatment justifies the violation of the fundamental right of physical integrity, information and consent are consequently interrelated and inseparable.
Nevertheless, the medical profession has neither understood nor shared the personal injury doctrine. On the contrary, it has provoked severe criticism from the beginning. In view of the fact that the main objective of medical treatment is to preserve the patient’s health, it seems reasonable to claim that medical treatment without the patient’s consent is not a violation of the patient’s physical integrity but a violation of his or her autonomy and freedom of decision. Despite this perpetual criticism, the personal injury doctrine has remained applicable and has been enshrined in the German Civil Code (BGB) in 2013. Regardless of the chosen approach – the personal injury doctrine on the one hand or patient’s self-determination on the other – it is informed consent that is central and indispensable for medical treatment. Thus, the academic debate has predominantly shifted from questioning the violated right to specifying the information duties and guaranteeing the patient’s self-determination. Covid19 and the rapid technological progress have pushed this debate forward by constantly imposing new challenges to informed consent.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: Medical Law, Informed Consent, Tort Law

JEL Classification: K13, K30