Citation: 16 Med. & L. 651 1997

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Med Law (1997) 16:651-653 Medicineand LawOozMOT 1996

Commentary

INFORMED CONSENT - A PLOY?

Ralph Slovenko

With means of millions of dollars - yes, millions - various foundationshave funded research on "informed consent." The publication of articles andbooks on the topic continues without an end in sight.

To what purpose? Social scientists tend to take the law at face value. Asfar as the law is concerned, the concept of "informed consent" is a ploy, soresearch on it might just as well be on abracadabra.

As historian A.J.P. Taylor said of one research project, "It is 90 percenttrue and 100 percent useless." The tactical use of the concept in litigation isnever mentioned.

Under the informed consent doctrine, the physician is obliged to discloseand explain to the patient the nature of the ailment, the nature of theproposed treatment or operation, the probability of success, alternativemethods of treatment, and the foreseeable results.

As a legal matter, the liability arising out of a treatment where consent islacking can rest on one of two theories: battery or negligence. Typically, anaction based on battery occurs where the physician obtains the consent ofthe patient for the performance of a particular treatment but thereafterperforms a different treatment for which consent was not obtained. Anexample is the case where a doctor removed a fibroid tumor even though thepatient insisted that "there must be no operation." "The wrong complainedof', the court said in the oft-cited decision in Schloendorff v. Society ofNewYork Hospital, "is not merely negligence. It is trespass." When consent isgiven for a particular treatment but injury results due to an undisclosed risk,the theory in such a case is usually negligence. An example is wherevertebrae were broken during shock treatment. The latter type of case fallsunder the doctrine of informed consent that has developed during the lastthirty years.

Ralph Slovenko is Professor of Law and Psychiatry at Wayne State UniversityLaw School, USA.

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Medicine and Law

In either case, the elements of consent include the competence of thepatient and the voluntariness of the consent. Knowledge of the risk is theadditional element in the latter type of case. Expert opinion is not requiredto establish a battery, whereas it is in order to establish negligence. Aninsurance policy does not cover intentional torts (such as battery).

Initially, the lack of an "informed consent" - like lack of consent to aprocedure - was deemed a battery, but gradually the various state courtsheld it constituted negligence (malpractice). The medical profession inTexas persuaded the state legislature to enact legislation to that effect. Afterall, it is only just that when a ploy is used that it fall under the practitioner'sprofessional liability policy.

By and large, to focus on the literal meaning of "informed consent" is toengage in a metaphysical exercise. Informed consent is not really aboutinformation or voluntariness. Dr. Jay Katz of Yale University calls it "a fairytale."

Trying to measure up to the terms of informed consent, the medicalpractitioner encumbers his practice with forms as he goes through the ritualof providing information. Taking the informed consent doctrine literally,and seeking to avoid liability, the medical practitioner resorts to wordy,ritualistic disclosures (which patients rarely read). As in the case of theresearcher, one must ask, to what end?

The concept of informed consent was essentially developed at law toprovide another course of action in cases of poor outcome when negligencein treatment could not be established. It provided an alternative pathway toestablish liability. In a case of lack of informed consent, the fact that thetreatment was properly performed is immaterial. And it's always a "can ofworms" whether the elements of informed consent are satisfied.

At other times, the doctrine of informed consent is used as a vehicle tobar or express condemnation of a procedure. To this end, it is used againstelectroshock therapy or psychosurgery.

The psychosurgery case some years ago at Detroit's Lafayette Clinic is acase in point. At a conference at the clinic, which I and Dr. Elliot Lubychaired, the subject of the experiment, Louis Smith, was interviewed in thepresence of a group of approximately 30 persons, including a number ofpsychiatrists, a judge, and some staff members of the clinic. While some

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expressed doubt about the merit of the experiment they all agreed that therewas a competent consent.

Smith was intelligent and he was even advised that the procedure mightresult in death. He could communicate better than most university students.His favorite book was Joseph Heller's "Catch 22" which he read as often asothers read the Bible.

Smith at the time was an inmate at the lonia State Facility for SexOffenders, but with the repeal of Michigan's sexual psychopath law, hewould be released in a few months, irrespective of the experiment. Smithsought the experiment in order to control outbursts of aggression.

Without consulting Smith, Michigan Legal Services lawyer GabeKaimowitz, representing himself and certain individual members of theMedical Committee for Human Rights, filed a taxpayers' suit to halt thestate-funded experiment.

A panel of three judges in Wayne County Circuit Court listened to threeweeks of testimony. In a 41-page opinion, Judge Horace Gilmore, writingthe opinion, ruled that an involuntarily confined individual cannot give alegitimate consent as he is living in "an inherently coercive atmosphere."The court would allow a prisoner to consent only to low-risk, high-benefitprocedures. Nothing was said about Smith's pending discharge.

Recently, the Detroit News wrote about Judge Gilmore's 40-year serviceon the bench and noted his opinion in the case. He said in the interview, "Icould control your violent behavior, too, just by removing all of your brain.What they wanted to do just wasn't right."

The doctrine of consent gave a rationale for the decision. Once again, itserved as a ploy.

Medicine and Law 653