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Article Title

Resuscitating Consent

Document Type

Article

Abstract

The scholarly focus on autonomy in healthcare decision making largely has been on information about, rather than consent to, medical treatment. There is an assumption that if a patient has complete information and understanding about a proposed medical intervention, then they will choose the treatment their physician thinks is best. True respect for patient autonomy means that treatment refusal, whether informed or not, should always be an option. But there is evidence that healthcare providers sometimes ignore treatment refusals and resort to force to treat patients over their contemporaneous objection, which may be facilitated by the incapacity exception to informed consent requirements. This Article uses the case of treatment over objection to resuscitate analysis of consent. This Article asserts that the nature of autonomy in medical decision making is misunderstood, which can lead to wrongful use of the incapacity exception and subsequent harm. Autonomy has become erroneously conflated with an individual’s capacity for rational decision making, obscuring the reality that the exercise of autonomy is mediated by the body. That is, autonomy is not solely cognitive, but also corporeal. Indeed, bodily integrity is a necessary component of autonomy, and so violating bodily integrity by treating patients over their objection is inconsistent with respect for autonomy. Further, when healthcare providers violate patients’ bodily integrity, there can be significant harms to wellbeing. Moreover, if providers misuse the incapacity exception in order to treat patients over their objection, this nullifies informed consent law. This Article argues that patients should not be treated over their objection even when providers do not perceive refusals to be rational because such treatment is inconsistent with respect for patient autonomy and bodily integrity, promotion of wellbeing, and maintenance of the rule of law. In order to prevent or remedy treatment over objection, this Article argues that states should adopt laws that provide adults with absolute legal capacity to refuse medical treatment unless a court overrides their decision. The proposed law thus would prevent healthcare providers from disqualifying their patients from refusing treatment even when there are questions about the patient’s decisional capacity.

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