The Legal Right to Informed Consent

“No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.” —United States Supreme Court, Union Pacific Railway v. Botsford, 1891

Despite the empty, bureaucratic way it is typically applied, informed consent means something real. It is a legal right, and it means what it says: Inform + Consent. Most, if not all, constitutional democracies explicitly protect the right to make informed and autonomous healthcare decisions, and ground it in the dearest fundamental liberties that we require to be happy and whole human beings. The United States roots the legal right to informed consent, and the right to refuse medical intervention, in the Fourteenth Amendment promise that nobody will be deprived of “life, liberty or property without due process of law,” a clause of the Constitution that protects other important rights. In the U.S., the doctrine of informed consent has been developed as a part of medical malpractice law. It is interesting that, as soon as modern medicine came into being, people saw a need to address a patient’s rights by law.

We who hire doctors to advise and assist them with medical care have the right to receive full information from those doctors about our options, and the risks and benefits of those options; we have the right to make the decision about which options we want to pursue. A doctor cannot substitute her judgment for that of a patient by failing to disclose what she is going to do to the patient’s body. The patient’s decision to refuse a doctor’s offer of treatment doesn’t have to seem reasonable or prudent to the doctor, or to anybody else. The right to informed and autonomous decisions in healthcare is the right to weigh the full spectrum of risks and benefits according to the patient’s personal values and perspective.

Click to read more by advocate Hermine Hayes-Klein:

More about informed consent here:

Informed Consent

Whenever a medical procedure, drug, test or other treatment is offered to you, your legal right to informed consent means that your health care provider is responsible for explaining:

  • Why this type of care is being offered;
  • What it would involve;
  • The harms and benefits that are associated with this type of care; and
  • Alternatives to this care, and the harms and benefits of those other options, including the possibility of doing nothing at the present time (“watchful waiting”).

Informed consent is not a form or a signature. It is a process between you and your care provider that helps you decide what will and will not be done to your body. In the case of maternity care, informed consent also gives you the authority to decide about the care that affects your baby.

The purpose of informed consent is to respect your right to self-determination. Your rights to autonomy, to the best available information and to protect your children and yourself from harm are very basic human rights.

You have a right to clear and full explanations about your care and answers to any questions you may have. You also have the right to request and receive a copy of your medical records and to get a second opinion. And there is a growing trend for people to have ready online access to their complete health records.

It can be hard to have these conversations in a busy health care setting with so much going on, but it’s important to set aside the time to discuss these issues with your care provider, both in advance and when it is time to make a decision. If at any point during pregnancy, these conversations raise concerns that your maternity care provider or your planned birth setting is not a good match for your values and preferences, you may want to explore other options.

Informed Refusal
If you disagree with your care provider and decide not to accept care, you have a right to this “informed refusal.” Even if you signed a form agreeing to a particular type of care, you have the right to change your mind.

Care Provider Rights
Your care provider has the right to agree or disagree to provide care that you may request. For example, if a woman requests a cesarean and has no medical need for this procedure, her care provider has the right to refuse to do the surgery. For many reasons, maternity care providers and hospitals may refuse to provide some types of care that would be a good and reasonable choice for many women, such as vaginal birth after cesarean (VBAC). This is another reason it is important to be aware of your options in advance and seek more responsive birth settings or care providers if you are not getting the answers you want.