Pulling Out the Rug on Informed Consent — New Legal Threats to Clinicians and Patients

This month we have chosen to highlight an article which appeared in the New England Journal of Medicine, Pulling Out the Rug on Informed Consent — New Legal Threats to Clinicians and Patients, reflecting the impact of changes in US law on informed consent. In their perspective piece, Underhill and Nelson write about the change to Utah’s Malpractice Act which allows the retroactive withdrawal of consent given as a minor, leaving clinicians vulnerable to future litigation. We are highlighting this article as we are concerned about the intersection of politics and ideology here. Consent is an important to the patient as to the physician, and the role of consent should not be used to further an agenda. We are reaching out to the authors to explore potential pathways forward.

Pulling Out the Rug on Informed Consent — New Legal Threats to Clinicians and Patients
Perspective
Kristen Underhill, Kimberly M. Nelson
New England Journal of Medicine, 1 February 2025
Abstract
A legal technique deployed by Utah to restrict gender-affirming care for minors aims at a core component of the clinician–patient relationship: clinicians’ ability to rely on patients’ informed consent.
Excerpt
   In recent years, state legislators in large portions of the United States have devised and enacted new legal strategies to limit access to health care for transgender people. To date, 26 states have enacted outright bans on gender-affirming care, which thus far apply only to minors. Other state laws create financial or procedural obstacles to this type of care, such as bans on insurance coverage, requirements to obtain opinions from multiple clinicians, or consent protocols that are stricter than those for other health care…
Allowing patients to withdraw their consent retroactively is an acute threat to the legal infrastructure supporting U.S. healthcare. Informed-consent requirements exist to ensure that patients have the information and agency to participate in their own healthcare. They also protect clinicians. In all practice areas, clinicians expect to rely on patients’ consent at the time of care, without having to guess which patients will later change their minds. If laws eliminate clinicians’ ability to rely on consent at the time of care, the resulting legal instability may undermine access to all types of health care services. Pulling out the rug on informed consent threatens the core of the clinician–patient relationship. Clinicians in every area should recognize that these laws are not just attacking gender-affirming care — they are attacking the foundation of the U.S. health care system.