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“I Think I Do”: Another Perspective on Consent and the Law

Published online by Cambridge University Press:  28 April 2021

Lynn A. Baker
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Extract

The doctrine of informed consent, introduced by the courts in 1957, is but one of many legally imposed duties to disclose to arise over the last several decades. In myriad areas of everyday life, including medical decision-making, the law has come to require that a person or entity with presumptively superior information as to risks, contents, or consequences take affirmative steps to disclose that information at the time another individual is faced with a decision for which it might prove pertinent.

Such disclosure requirements underscore the values of individual liberty and self-determination that are at the core of our rights-based legal system. Rather than directly and more paternalistically regulating citizen behavior by, for example, simply prohibiting a given riskcreating activity, the State takes the less intrusive step of mandating that the individual be provided information that might affect her behavior.

Type
Intimate Choices
Information
Law, Medicine and Healthcare , Volume 16 , Issue 3-4 , Winter 1988 , pp. 256 - 260
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

“The doctrine of informed consent surfaced, seemingly out of nowhere in Salgo v. Leland Stanford Jr. University Board of Trustees [317 P.2sd 170 (Cal. 1957)].” Katz, Jay, The Silent World of Doctor and Patient (New York: Free Press, 1984), 60. See also Faden, Ruth R. & Beauchamp, Tom L., A History and Theory of Informed Consent (New York: Oxford University Press, 1986), 86–91, 125–29.Google Scholar
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