Consent forms as part of the informed consent process: moving away from "medical Miranda".

Abstract

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The current state of the law of informed consent represents a failure of legal efforts to implement a bioethical doctrine. Despite the fact that the doctrine of informed consent is one of the oldest and most widely accepted efforts to implement an ethical doctrine as part of the law, studies have consistently and recently demonstrated that the results of this effort have been dismal. This Note examines this failure and trace its roots in part to theoretical misunderstandings about what the goal of informed consent truly is. Specifically, many-both in the medical community and elsewhere-still approach informed consent under a harm-avoidance model, in which the primary goal is to protect physicians from legal liability by providing the patient with massive amounts of complicated medical information. The ethically and legally preferable model is one seeking to enhance the patient's autonomy and understanding of the medical decision through a process of active collaboration between the physician and patient. While the autonomy-enhancing model is widely recognized as being superior to the harm-avoidance approach, recent studies illustrate that the reality of medical practice remains closer to the latter. Concrete steps can and must be taken to alleviate this problem, and this Note examines consent forms as both an example of the ills of the harm-avoidance model in action as well as an area in which measures can be implemented to bring informed consent in line with the ethical ideals it is meant to enact.