Public Health Law Map - Beta 5 - Medical and Public Health Law Site

such as cancer should be withheld from patients to foster the proper mental attitude
for recovery. Most of the court opinions and legal articles dealing with informed
consent take care to acknowledge that there may be circumstances when it is in the
patient’s best interest not to be informed of the risks of the proposed treatment.
Although the courts constantly reaffirm the existence of the therapeutic exception,
they uniformly reject it as a defense in specific cases. Even Hawaii, which
specifically overruled Nishi and adopted the reasonable patient standard for informed
consent, still says that the physician can defend with testimony that a reasonable
physician would have withheld the information. [Carr v. Strode, 904 P.2d 489 (Haw.
1995).]
The public debate that surrounded the question of telling patients about their cancer
has made the courts wary about establishing standards that would deny patients
information. But the courts have not explicitly overruled the cases that discuss the
therapeutic exception; they have just refused to find that a therapeutic exception
existed in the cases where the defendant physicians have tried to use it as a defense.
They have stated that the alleged harm cannot be the refusal of the treatment. Implicit
in the narrowing of the basis for the therapeutic exception is the belief that if a
patient is sufficiently psychologically fragile as to be harmed by the consent process,
then perhaps that patient is not competent to consent to care. If a physician really
believes that it would do significant harm to a patient to tell that person the risks of a
proposed treatment, then it would be appropriate to consider petitioning the court to
determine if that patient should have a guardian appointed to make medical
decisions.
C. Informed Consent
Medical care, especially surgical care, is the most intrusive private action that may be
done to a free person. Society may imprison or execute, but one private citizen may not
cut or medicate another without permission from the intended patient and a license
from society. A person’s right to consent to medical treatment has always been an
important part of medical care. It was not a topic of general interest until the war
crimes trials at Nuremberg shocked the world medical community with revelations
about the experiments carried out by physicians in the death camps. Blurring the line
between experimentation and torture, these experiments moved the discussion of
consent to medical care from the philosophical to the practical.
1. Social Trends behind Informed Consent
The broad acceptance of informed consent to medical treatment as a routine part of
medical practice is less than 20 years old. Despite many physicians’ belief that
informed consent is a creature of legal fiat, it is the natural societal response to the
demystification of medicine. As medicine has moved from the shaman’s tent into the
research laboratory, it has adopted the cloak of logical decision making. A natural
response is the assumption by the lay public that, given enough information, they
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