Informed Consent
.PP
It would appear to be an elementary theorem of morality and decency
that an individual must not be subjected to any surgical,
or for that matter, medical treatment to which he has not given consent.
And inasmuch as consent is meaningless unless the subject understands
what it is that he is consenting to,
the requirement that has established itself in the legal tradition
is "informed consent."
It is one of these many phrases that characterize
the evolution of successive epochs in the law.
For, notwithstanding its implicit claim on permanence and immutability,
the law is anything but static.
It changes from decade to decade if not indeed from year to year.
As a consequence, and paradoxically, it is impossible, at any give time,
to say what the law really is.
More accurately, what the law really is become apparent in the present
only in the ruling of the judge.
Whatever he determines to be the law,
that it is, in any event, within his jurisdiction.
The lawyer who argues the law, as distinct from the judge who makes it,
can determine what the law is only in retrospect,
never in the present.
And even then, that the accidental and haphazard judgments of the courts
should constititute a rational fabric is so transparent a fiction
that only a fleeting acquaitance with the decisions of the courts
suffices to disabuse one of the illusion.
.PP
It is our good fortune that not being lawyers and not being judges,
except over the inward jurisdiction for which each one of us is responsible,
we may take an unbiased and unprejudiced look at some of the problems
and anomalies which this concept incorporates and represents.
We distinguish, first of all, the use of the term
as a covenient judicial pretext for achieving an end
deemed desirable for other reasons and from other perspectives.
The men and women who constitute our juries
are anything but legal theorists
nor are they expert in any field except to bring about, to set right,
to reorder what seems to them an unjust disposition of circumstances
to one that should be more fair and equitable.
.PP
To the extent then that we applaud the consequences of litigation
as being equitable and good or perhaps merely as being advantageous
to ourselves as individuals or groups,
we applaud the legal process as an instrument for correcting
the inadequacies of social and individual human nature.
To the extent that we disapprove, and that the results of adjudication
are unfavorable to us, we consider due process little more than
a device that makes us comfortable in living with the wrong.
Actually it is neither good nor bad, but neutral,
like all other human faculties and institutions.
Capable of many things, some of which seem good at one time
and bad at another.
What distinguishes it from other social endeavors,
is a claim to virtue which it cannot substantiate
and which is so evidently controverted in history.
It is this incongruity which weighs most heavily on the intelligent
and sensitive judge.
He knows that the only disposition compatible with the truth
is humility and forbearance;
he understands at the same time it is just this,
the power and the assertiveness that society demands of him.
And that if he does what is inwardly needful, and abdicates
what society demands and expects of him.
It is easy to see therefore that in dialectical perspective
the judge's dilemma resolves itself.
The only good judge is he who abdicates his judicial function,
a conclusion altogether compatible with biblical statements on this issue.
.PP
These considerations leave us free of the requirement of legal justification
The problem of obtaining informed consent from our patients
resolves itself into two parts.
On the one hand we must do right by our patients.
On the other hand we must so conduct ourselves that
we minimize the risk of legal challenge to our conduct
and if we cannot avoid it, at least that we can survive it.
.PP
On the face of it, the requirement that we obtain informed consent
is not self-explanatory. It must be interpreted.
The question immediately arises, what we must do
if the patient cannot understand.
Or if our our attempt to explain creates misunderstanding.
The patient is not informed, if he does not understand.
Who will define for us what understanding is?
What indication should we require that the patient does understand
before proceeding with any given operation or treatment.
Given such uncertainty,
a very persuasive argument might be made to the effect that the legal
requirement for obtaining informed consent
precludes the administration of any medical or surgical therapy whatsoever,
at least for the majority of patients, in as much as to understand
the information given is to understand its implications and this is not
possible unless one were to have had the benefit of a formal
medical education.
.PP
In this context it is particularly noteworthy
that virtually all the information
on which diagnosis and treatment are based
is statistical in nature,
which is as much as to say, that conclusions from it
cannot be drawn unconditionally but only with some 
defined or more likely undefined measure of probability.
From these considerations it is but a small step to the important
but seldom discussed question of what it is that the physcian himself
does or does not undertand about the consequences of the course
of action which he advocates for his patient.
Clearly it would be expecting too much to be cognizant
of the limitations of the physicians knowledge,
and it is of course essential that the physician himself be aware of them.
.PP
It is worth at this juncture to inquire to what extent the physician
himself possesses the information and the knowledge on the basis of which
informed consent might be given; or whether in this circumstance
he fulfills his putative obligation to the patient
by stating that he does not know a given fact,
and that to the best of his knowledge no one else does either.
.PP
The presupposition of the informed consent doctrine is that all
relevant knowledge can be exhaustively conceptualized,
as statements and as propositions, unamiguously encoded in language
and thereby communicated and transmitted.
.PP
Only little thought is requirted to demonstrate that these assumptions
are palpably wrong.
Much of what we do, and most of what we do skilfully
flows from the unconscious, from attitudes habits and skills
and dispositions of the mind that art not susceptible to 
definition except in retrospect and fragmentarily.
And just as our actions do not lend themselves adequately
or exhaustively to conceptualizations, neither do our perceptions.
What we experience in the present or what the future holds for us.
By and large the accounts of the future, the expectations
relying on which we as prudent individuals control our lives,
are as real as the fairy tales with which we entertain or frighten
our children.
.PP
In this context there comes to mind the declaration of Socrates
in the Crito about the fear of death reflecting the fear of something
that one cannot know,
and the lines of Rilke, where he states that whatever happens
is so far beyond our surmising that we never catch up with it,
and never experience what it is really like.
The presumption to prophesy to our patients about the future
is foolish and destructive.
What happens is virtually never what we predicted.
.PP
If we cannot realistically inform our patients about what the future
holds for them, because we ourselves do not know,
it is still worth our while to talk with them,
but the burden of our conversations will be different
from what the courts define as obtaining informed consent.
It will be deeper and more meaningful,
more truthful and is likely to protect us in most instances
from the anger that would otherwise precipitate a malpractice claim.
.PP
For ther sake of completeness it must be said that our patients
do not reciprocate our concerns and are not appreciative
of our affection for them.
They do not want sympathy. They want cures.
And miracle cures at that.
The latest and the best.
They believe what they have seen on television
rather than what their physician tells them.
And in this context it is probably the television doctors
who promote themselves on the talk show
who are responsible more than any one else
for the patient's misconceptions.