Patient’s in formed consent: problems of legal evaluation of information provided to a patient

Jelena Kutkauskienė, Antanas Rudzinskas

Abstract


The concept of patient’s informed consent in scientific literature is usually derived from a patient’s right to self-determination and from the right to autonomy. The doctrine formed in the 20th century and prevailed globally in 1997, when the Council of Europe approved the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine.
Lithuanian legal doctrine acknowledges that only the informed consent of a patient makes another person’s (i.e. the physician’s) intervention into the patient’s body legitimate. However, the standard of informing a patient is still developing in Lithuanian legal system. Therefore, a comparative analysis of the concepts of a patient’s informed consent applied in other countries and in Lithuanian court practice is relevant.
The article discusses the content of information provided to a patient, and defines the criteria for information disclosure. A physician’s professional discretion limits the generally accepted patient’s right to choose alternative treatment or examination methods. The countries that introduced national health insurance systems (UK, Sweden, Norway, and Denmark) have accepted information standards on alternative treatment or examination methods with regard to available resources. Applying criteria of economical benefit is rational because it allows balancing the person’s (i.e. the patient’s) and the community interests and ensures the patient’s right to choose a treatment and(or) examination method that corresponds to the country’s level of economic development. In countries that have chosen the social health insurance model (Germany, Austria, Netherlands) information about methods that have the same risk levels and results may be not disclosed. In the Lithuanian legal system there are certain preconditions to develop a mixed standard of disclosure of information about alternative treatment and examination methods, when the physician provides the patient with information regarding the criteria of economical benefit and the balance between the risk and expected results.
The concepts defining the content of information about the risk that is ought to be disclosed to the patient are analysed: basic information disclosure, normal and foreseen risk theory, and typical and special (individual) risk disclosure.
However, none of these concepts provides us with sufficiently defined criteria of physician’s duty to inform the patient. Lithuanian court practice enables us to conclude that when providing a patient with the information about risk involved in treatment and(or) examination method, the physician must also disclose specific(individual) risk.

Keywords


biolaw; patient’s informed consent; information disclosure; information provided to a patient

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"Societal studies" ISSN online 2029-2244 / ISSN print 2029-2236