SPOTLIGHT ARTICLES
In a JAMA Viewpoint – The Politics of Informed Consent and the Limits of the First Amendment – Sawiki explores “state-mandated messaging” in consent processes in the U.S. and the role of the courts as patient groups and others challenge such mandates in the courts. The author argues that “courts need to be educated about the ethical principles behind the practice of informed consent” to more competently adjudicate such challenges and that the medical community needs to engage such education, among other responses, to protect related first amendment rights.
Also in the area of legal rights Jowett examines access to and regulation of healthcare for trans youth in Australia, England and Wales in the new book Consent for Medical Treatment of Trans Youth [Cambridge U Press]. Jowett argues that legal barriers to clinical practice should be congruent with and reflect the current state of medical knowledge.
Writing in the Journal of Medical Ethics, Hoffman – Undermining autonomy and consent: the transformative experience of disease – offers interesting perspectives about how transformative experiences proceeding from disease can challenge a patient’s ability to consent and thereby raise questions about concepts in medical ethics such as patient autonomy.
Finally, in the Canadian Journal of Anesthesia Pope et al. address an area that has received relatively little attention. In Consent for determination of death by neurologic criteria in Canada: an analysis of legal and ethical authorities, and consensus-based working group recommendations the authors discuss whether there should be a requirement to obtain family consent before determination of death by neurologic criteria.
The Politics of Informed Consent and the Limits of the First Amendment
Viewpoint
Nadia N. Sawicki
JAMA, 17 April 2023; 329(19) pp 1635-1636
Excerpt
Physicians are accustomed to disclosing the risks and benefits of treatment as part of their ethical and legal duty to secure informed consent. Generally, physicians have the freedom to decide how to communicate this information, and to tailor their disclosures to the needs of individual patients. However, in today’s highly politicized climate, some state legislatures are eliminating this opportunity for professional discretion. Physicians are increasingly being compelled to communicate state-mandated messaging that may be at odds with their professional judgment, violating their ethical duty to secure informed consent by “present[ing] relevant information accurately and sensitively, in keeping with the patient’s preferences for receiving medical information.” Even though physicians and patient advocates have argued that these targeted disclosure laws are unconstitutional, the First Amendment sets few restrictions on the government’s ability to compel physician speech. This Viewpoint discusses the expansion of politically motivated informed consent laws and identifies opportunities for the medical profession to challenge them…
Consent for Medical Treatment of Trans Youth
Book
Steph Jowett
October 2022 [Cambridge University Press]
Book Description
Access to medical treatment for trans youth occupies a haphazard and dynamic legal landscape. In this comprehensive scholarly analysis of the historical and current legal principles, Steph Jowett examines the medico-legal nexus of regulation of this healthcare in Australia and in England and Wales. This is informed by an in-depth discussion of the medical literature on treatment for trans youth, including clinical guidelines, the outcomes of treatment and outcomes for trans youth who are unable to be treated. With illustrative examples and clear language, Jowett argues that legal barriers to clinical practice should be congruent with and reflect the current state of medical knowledge. Not only does Jowett assess the extent to which key legal decisions have been consistent with medical knowledge in the past, but she offers a nuanced, comparative perspective that will inform reform efforts in the future.
Undermining autonomy and consent: the transformative experience of disease
Original Research
Bjørn Hofmann
Journal of Medical Ethics, 3 May 2023
Abstract
Disease radically changes the life of many people and satisfies formal criteria for being a transformative experience. According to the influential philosophy of Paul, transformative experiences undermine traditional criteria for rational decision-making. Thus, the transformative experience of disease can challenge basic principles and rules in medical ethics, such as patient autonomy and informed consent. This article applies Paul’s theory of transformative experience and its expansion by Carel and Kidd to investigate the implications for medical ethics. It leads to the very uncomfortable conclusion that disease involves transformative experiences in ways that can reduce people’s rational decision-making ability and undermine the basic principle of respect for autonomy and the moral rule of informed consent. While such cases are limited, they are crucial for medical ethics and health policy and deserve more attention and further scrutiny.
Editor’s note: The Paul referred to in this Abstract is philosopher Laurie Ann Paul, and Carel and Kidd are Havi Carel and Ian James Kidd.
Consent for determination of death by neurologic criteria in Canada: an analysis of legal and ethical authorities, and consensus-based working group recommendations
Special Article
Thaddeus M. Pope, Jennifer A. Chandler, Michael Hartwick
Canadian Journal of Anesthesia, 2 May 2023
Open Access
Abstract
This article addresses the following question: should physicians obtain consent from the patient (through an advance directive) or their surrogate decision-maker to perform the assessments, evaluations, or tests necessary to determine whether death has occurred according to neurologic criteria? While legal bodies have not yet provided a definitive answer, significant legal and ethical authority holds that clinicians are not required to obtain family consent before making a death determination by neurologic criteria. There is a near consensus among available professional guidelines, statutes, and court decisions. Moreover, prevailing practice does not require consent to test for brain death. While arguments for requiring consent have some validity, proponents cannot surmount weightier considerations against imposing a consent requirement. Nevertheless, even though clinicians and hospitals may not be legally required to obtain consent, they should still notify families about their intent to determine death by neurologic criteria and offer temporary reasonable accommodations when feasible. This article was developed with the legal/ethics working group of the project, A Brain-Based Definition of Death and Criteria for its Determination After Arrest of Circulation or Neurologic Function in Canada developed in collaboration with the Canadian Critical Care Society, Canadian Blood Services, and the Canadian Medical Association. The article is meant to provide support and context for this project and is not intended to specifically advise physicians on legal risk, which in any event is likely jurisdiction dependent because of provincial or territorial variation in the laws. The article first reviews and analyzes ethical and legal authorities. It then offers consensus-based recommendations regarding consent for determination of death by neurologic criteria in Canada.