January 2, 2019

When it comes to one’s own healthcare, who knows best, the patient or the healthcare provider? What patients tell their providers and what providers tell their patients matters. One aspect of this communication involves the legal concept of informed consent. This concept arose in the late 1800s in connection with moral considerations concerning human experimentation. Codes of ethics written then enshrined patients’ rights to voluntary consent and free choice, as opposed to the advancement of medicine and clinical research carried out in the name of “science.”

Today, informed consent means that healthcare providers must disclose information to their patients that will allow patients to make intelligent choices regarding their own medical care. There is a split amongst the states as to what constitutes informed consent. A few states have crafted a framework of informed consent by underscoring and protecting patients’ choice. This framework is known as the reasonable-patient standard. Most other states, including Illinois, have crafted a framework of informed consent by underscoring the notion that “doctors know best.” This is known as the reasonable-physician standard.

Under the reasonable-physician standard, to be able to sue the provider for not obtaining proper informed consent, the patient must show what a reasonable physician would have told the patient under the same circumstances. On the other hand, in those states that operate under the reasonable-patient standard, a lack of informed consent is established when a reasonable person in the position of the patient would have decided against the treatment. The foundation for disclosure under the reasonable-patient standard is rooted in the idea that it is within the right of the patient, not the physician, to determine the direction of the patient’s healthcare.

Regardless of which standard is applicable to any given case, or what state definition applies, informed consent should involve elements of both standards, thereby bringing together concepts of shared decision making. Patients and their healthcare providers should collaborate and communicate with one another in clear, transparent, and honest fashion. Open and honest communication ensures providers are given their best chance to provide the best care possible and patients are given their best chance to overcome their fears and ailments.