Megan Wright, ‘Resuscitating Consent’

ABSTRACT
The scholarly focus on autonomy and healthcare decision making largely has been on information about medical treatment, and much less attention has been paid to the issue of consent to medical treatment. Indeed, there is an assumption in the law, bioethics, and clinical literature that if a patient has complete information and understanding about a proposed medical intervention, then the patient will choose the treatment their physician thinks is in their best interests. However, despite how well-informed patients are, autonomous healthcare decision making is impossible if patients do not consent to treatment they receive.

True respect for patient autonomy in healthcare decision making means that treatment refusal should always be an option. But there is evidence that patient treatment refusals are sometimes ignored by healthcare providers who may resort to force when treating patients over their objection in hospitals. Scholars have examined treatment over objection in psychiatric, obstetric, and end-of-life contexts, but the law and ethics of medical treatment over contemporaneous objection for the general patient population have received scant scholarly attention.

This Article aims to fill this gap by focusing on medical treatment over contemporaneous patient objection in acute care hospitals. This Article uses this case to revitalize the importance of consent and makes two novel theoretical contributions: 1) autonomy in healthcare decision making is not solely cognitive, but also corporeal, and should be understood to include bodily integrity, and 2) healthcare providers contribute to the erosion of the rule of law when they provide medical treatment over their patients’ objection …

Wright, Megan, Resuscitating Consent (September 1, 2021). Boston College Law Review, forthcoming.

First posted 2021-10-02 11:00:25

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