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“I Think I Do”: Another Perspective on Consent and the Law

Published online by Cambridge University Press:  28 April 2021

Lynn A. Baker
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Extract

The doctrine of informed consent, introduced by the courts in 1957, is but one of many legally imposed duties to disclose to arise over the last several decades. In myriad areas of everyday life, including medical decision-making, the law has come to require that a person or entity with presumptively superior information as to risks, contents, or consequences take affirmative steps to disclose that information at the time another individual is faced with a decision for which it might prove pertinent.

Such disclosure requirements underscore the values of individual liberty and self-determination that are at the core of our rights-based legal system. Rather than directly and more paternalistically regulating citizen behavior by, for example, simply prohibiting a given riskcreating activity, the State takes the less intrusive step of mandating that the individual be provided information that might affect her behavior.

Type
Intimate Choices
Information
Law, Medicine and Healthcare , Volume 16 , Issue 3-4 , Winter 1988 , pp. 256 - 260
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

“The doctrine of informed consent surfaced, seemingly out of nowhere in Salgo v. Leland Stanford Jr. University Board of Trustees [317 P.2sd 170 (Cal. 1957)].” Katz, Jay, The Silent World of Doctor and Patient (New York: Free Press, 1984), 60. See also Faden, Ruth R. & Beauchamp, Tom L., A History and Theory of Informed Consent (New York: Oxford University Press, 1986), 86–91, 125–29.Google Scholar
To cite just a few examples: Pharmaceutical companies are required by law to tell the consumer of potential adverse effects of using their products, see 21 U.S.C. § 352 (1982); processed foods bear legally mandated labels stating their contents, see id. § 343 (1972); lending institutions must inform the borrower of the total dollar amount of interest to be repaid, see 15 U.S.C. § 1638 (a) (1982); and the police are legally obligated to tell the person about to be arrested of her Constitutional right to an attorney and to remain silent, see Miranda v. Arizona, 384 U.S. 436, 467–73 (1966).Google Scholar
For a discussion of the rise of—and partial retreat from—the legal doctrine of informed consent, see Katz, Jay, supra note 1, 48–84. See also Faden & Beauchamp, supra note 1, 114–50; Alan Meisel & Kabnick, Lisa D., “Informed Consent to Medical Treatment: An Analysis of Recent Legislation”, University of Pittsburgh Law Review 41 (1980): 407.Google Scholar
See generally Katz, supra note 1.Google Scholar
Louisiana is at present the only exception. See supra note 6.Google Scholar
See generally Note, supra note 8.Google Scholar
Curran, Barbara A., The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977), 186–94.Google Scholar
Id. at 196.Google Scholar
Id. at 196, 218–19 n.27.Google Scholar
This fact may well change as antenuptial contracts become more accepted. Unfortunately, there do not at present appear to be any statistics available on how many persons contact an attorney for assistance in drawing up such an agreement.Google Scholar
See, e.g., VA. CODE ANN. § 20–48, 49 (1983); WASH. REV. CODE ANN. § 26.04.010 (1986).Google Scholar
See, e.g., LA. CIV. CODE ANN. art. 93 (West Supp. 1988); DEL. CODE ANN. tit. 13, § 1506(a)(5) (1981).Google Scholar
See, e.g., MINN. STAT. ANN. § 518.02 (West Supp. 1988); PA. STAT. ANN. tit. 23, § 205 (Purdon Supp. 1988).Google Scholar
See supra note 16.Google Scholar
See, e.g., MISS. CODE ANN. § 93–7–3 (1972); W. VA. CODE § 48–2–2 (1986).Google Scholar
See, e.g., W. VA. CODE § 48–2–2 (1986); R.I. GEN. LAWS § 15–1–5 (1981).Google Scholar
See, e.g., MINN. STAT. ANN. § 518.02 (West Supp. 1988); S.C. CODE ANN. § 20-1-10 (Law. Co-op 1976).Google Scholar
See, e.g., MISS. CODE ANN. § 93-1-5(f) (Supp. 1987); PA. STAT. ANN. tit. 48, § 1–5(d) (Purdon Supp. 1988).Google Scholar
See Miranda v. Arizona, 384 U.S. 436, 467–73 (1966).Google Scholar
For a brief intellectual history of the notion of the rule of law, see Shklar, Judith N., “Political Theory and The Rule of Law”, in Hutchinson, A.C. & Monahan, P., eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), 1.Google Scholar
Hayek, Friedrich A., The Road to Serfdom (Chicago: Univ. of Chicago Press, 1944), 72. It is Hayek's conception of the rule that is implicit in the familiar logo, “a government of laws, not men.”Google Scholar
Bentham, Jeremy, “Essay on the Promulgation of Laws, and the Reasons Thereof; with Specimen of a Penal Code”, in Bowring, J. ed., The Works of Jeremy Bentham (New York: Russell & Russell Inc., 1962), Vol. 1, 158.Google Scholar
Bentham, Jeremy, “Papers Relative to Codification and Public Instruction: Including Correspondence with the Russian Emperor, and Divers Constituted Authorities in the American United States”, in Bowring, J. ed., The Works of Jeremy Bentham (New York: Russell & Russell Inc., 1962), Vol. 4, 481.Google Scholar
Bentham, Jeremy, supra note 25, 158.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.: 159.Google Scholar
Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).Google Scholar
For an extended discussion of how our rhetoric of fair notice might be reconciled with the legal reality, see Jeffries, John Calvin Jr., “Legality, Vagueness, and the Construction of Penal Statutes”, Virginia Law Review, 71 (March 1985): 189, 205–12.Google Scholar