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The patient's right to know--a comparative law perspective
1Institute for Private Law, Free University of Berlin, Germany.
Medicine and Law
|January 1, 1993
Summary
Patients have a fundamental right to informed consent for medical treatments. English law inadequately protects this right by prioritizing medical opinion over individual patient needs, potentially undermining informed decision-making.
Area of Science:
- Medical Law
- Patient Rights
- Informed Consent
Background:
- Patient autonomy is a cornerstone of medical ethics, emphasizing the right to self-determination in healthcare decisions.
- Informed consent requires patients to receive comprehensive information about proposed treatments, including associated risks and benefits.
- Physicians have a corresponding legal and ethical duty to disclose necessary information for patients to make informed choices.
Purpose of the Study:
- To comparatively analyze legal frameworks in common and civil law jurisdictions regarding patient's right to know.
- To assess the extent to which different legal systems protect a patient's right to informed consent.
- To identify deficiencies in English law and other common law jurisdictions concerning disclosure obligations.
Main Methods:
- Comparative legal analysis of common law (e.g., English law) and civil law jurisdictions.
- Examination of legal standards for physician disclosure and their impact on patient rights.
- Analysis of the 'reasonable patient' standard and its implications for informed consent.
Main Results:
- English law's reliance on a negligence standard, where conformity with medical opinion is conclusive, offers limited protection for patient's right to know.
- The 'reasonable patient' standard in some common law jurisdictions creates an evidential gap, often filled by medical experts, potentially shielding physicians from liability for non-disclosure.
- A comparative analysis reveals that English law lags behind its common law relatives and European neighbors in safeguarding this fundamental patient right.
Conclusions:
- The patient's right to know is best protected when the standard of care focuses on the individual patient's needs, not solely on the consensus of medical opinion.
- Shifting the focus from a hypothetical 'reasonable patient' to the actual patient is crucial for robust protection of informed consent.
- Legal systems must prioritize patient-centered disclosure standards to ensure genuine informed decision-making in healthcare.