Since the early 20th century, the concept that every adult patient of sound mind shall have the right to decide what shall be done with his own body has gradually become the rule. This theme, which lawyers call self-determination and philosophers call autonomy, is the founda¬tion of the legal and ethical doctrine of informed consent.
Historically, the basis of medicine was considered to be touching. Consent in advance of such touching defeated a subsequent action for assault and battery. In the last century, however, negligence replaced assault and battery as the legal rubric governing medicine, and this change has imposed certain positive duties of care on practicing medi¬cal professionals. One is the responsibility for providing information and outlining the risks and benefits of alternative treatments so that patients can exercise their right to self-determination and choose in an informed manner.
The constitutional right to privacy, given its first modern articulation in the Supreme Court cases that legalized contraception and used as the basis for a woman’s right to an abortion, also supports the right of per¬sons to choose individually appropriate medical care plans. Further¬more, the concepts of personal liberty and the restraints on state inter¬ference with independent action and choice also support the legal rights of a person who is capable of making health care decisions to choose among medical care options.
Physicians must, therefore, inform patients of the diagnosis, the prognosis, the available alternative interventions, the risks and benefits of those options, and the risk and probable outcome of no intervention. The patient then has the right to informed choice; that is, the patient may consent to or refuse care, even if the likely outcome of the refusal is death. The physician has an obligation to communicate this right to choose to help empower the unaware, uninformed, or unsophisticated.
The doctrine of informed consent requires the physician to be more than a passive conduit for technical information. It requires that the physician disclose information in a language and manner appropriate to the individual patient so that the patient can make a personal choice.
A decision to refuse treatment—even if it appears senseless to the physician—does not mean that the patient is incompetent or crazy. Physicians must be aware, however, that among the most common rea¬sons for a patient’s refusal of suggested care is misunderstanding or miscommunication between the physician and patient. Therefore, phy¬sicians should not accept the first sign of reluctance as a refusal of care. Physicians are ethically required to encourage acceptance of the treat¬ment judged to be in the patient’s best interest. Most patients’ refusals of care will be reversed with attention, extended discussion, and even some cajoling. Advocacy, however, must stop short of coercion, du¬plicity, or deceit. Some refusals are adamant. They must be respected and can be reversed only by petition to a court. Physicians must not deprive patients of their rights; only a court, after full adversary argu¬ment, can order care over a patient’s clear and consistent refusal.
A patient’s refusal of care is not an attempted suicide. Courts distin¬guish between a refusal of care and a suicide, which is characterized by behavior begun by and under the control of the person (the inception) and intended to cause death (the intent). Thus, courts readily distin¬guish between jumping out of a 20th-story window and refusing further painful chemotherapy that may or may not arrest or reverse the prog-

ress of a malignancy. Courts regularly protect the right of an adult Jeho¬vah’s Witness who has no minor children or disabled dependents to refuse blood transfusions, which are prohibited by religious teaching, even when the attending physician considers them necessary for effec¬tive medical care. The individual’s right to choose almost always out¬weighs the physician’s responsibility to deliver usual and customary medical care.
Some states do recognize an exception to the informed consent pro¬cess, called the therapeutic privilege, which allows a physician to with¬hold information when, in the physician’s judgment, the patient would suffer direct and immediate harm as a result of the disclosure. This doctrine provides a limited exception to the usual rules governing the physician’s responsibility to disclose and the patient’s right to choose. However, the doctrine is appropriate only infrequently; mere upset or anguish over a grim situation does not qualify. When the doctrine is used, the patient’s state of mind should be reevaluated frequently to ensure that disclosure is made as soon as, in the physician’s judgment, the risk of serious adverse effects has abated sufficiently.
The theory of informed consent and the rights of patients are regu¬larly violated by well-meaning, benevolent physicians, often acting in concert with concerned family members. Many times, the patient is ill and frightened, and involving loving family members in difficult discus¬sions and decisions seems reasonable, even kind. But family involve¬ment should occur only with the patient’s permission and, in general, should not replace the patient’s involvement.
Involving the family without the patient’s consent violates the pa¬tient’s right to choose and right to confidential care. Some patients pre¬fer that decisions be made by the family or physician, others refuse to involve the family. Nevertheless, all patients should be given the choice.
Ethical oaths and specific statutes in every state protect the confiden¬tiality of the doctor-patient relationship. The relationship is also pro¬tected by the doctrine of privilege, which provides that the patient has the right to exclude otherwise appropriate, relevant, and admissible testimony in a court of law; this privilege can be invoked only by the patient. Additionally, most states have professional licensing statutes that incorporate professional oaths and make their strictures a clear part of professional practice.
Elderly patients are entitled to confidential care unless they give per¬mission for disclosure or they clearly can no longer express a prefer¬ence (eg, a patient who is confused or comatose). Even in these cases, personal secrets should be guarded, although decisions about care may need to be discussed with appropriate surrogates. When a patient can no longer make health care decisions, prior expressed preferences should be respected.