The doctrine of informed consent: a tale of two cultures and two legal traditions.

• Author: Walter, Paula

ABSTRACT: In this article, the author compares and contrasts the notion of informed consent in medical decision making in the Western legal system with the traditional Jewish biblical legal system. Walter critically examines the philosophical underpinnings of disease and medical healing in both legal systems, and describes the practical consequences that emanate from the different ideologies in terms of the individual's rights of choice of treatment. She explains that the Western system is predicated on notions of individual autonomy and self determination. Patients therefore have the autonomous ability to select and direct their own medical therapy. By contrast, the traditional biblical system of law is based on the concept that the body does not belong to the individual. Instead, the body is given to man by God as a trust to respect and preserve. Therefore, the individual patient "has no absolute right to control his body and ... he has no real decision making power as to medical treatment choices." In the Jewish biblical tradition, consent is not necessary for obviously beneficial or obviously non-beneficial procedures; consent is only necessary in decisions with uncertain outcomes or when making choices between equal options. Patients are encouraged to seek the counsel of religious authorities and to conform to rabbinical interpretations of the traditional Jewish law.

The concept of self determination, predicated on the assumption that man is master of his destiny, is deeply rooted in our Western legal system, as it mirrors the fundamental Western value of respect for the individual and his choices.(1) In the context of medical decision making, Judge Cardozo expanded upon the concept of self determination in Schloendorff v. N.Y. Hospital(2) by noting that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body."(3) Based on this statement of principle, judicial decisions have spawned the legal principles of consent which eventually developed into the doctrine of informed consent.(4) Implicit in this strong deference for individual autonomy is the belief that man has the right to be free from nonconsensual interference with his person.(5) The medical provider, by corollary, must respect the individual's unfettered right to choose his course of medical treatment, including the right not to pursue treatment. Many states have, in fact, enacted legislation which, by statute, formalizes the doctrine of informed consent.(6)

However, non-Western legal systems do not necessarily share this fundamental Western value which exalts man, and indeed, do not even recognize the precept as a legitimate intellectual or philosophical point of view. One such instance is the Jewish tradition based on biblical law and its Rabbinic interpretation.(7) The biblical system of law, which governs all aspects of human behavior, encompasses within itself an elaborate Code of rules ("Code") which guides the individual, qua individual, as well as his relationship with others in society. Conformance with this Code of behavior is purely voluntary, as enforcement measures are not available to ensure compliance. In effect, this legal system is a religious Code of law with which the individual voluntarily complies. An adherent faithful to this Jewish legal system agrees willingly to submit to this Code and to guide his personal life and behavior in accordance with these precepts.

The Jewish biblical tradition assumes, first, that the body does not belong to the individual, but is instead given to him by God as a trust to respect and preserve.(8) The individual has no absolute right to control his body, and therefore he has no real decision-making power as to medical treatment choices. Second, bodily suffering, in fact, may sometimes be viewed as a beneficial, or even a necessary event caused by the Divine as a message to man. Consequently, decision making with regard to medical treatment becomes not a matter of individual, personal choice. Instead, it is an issue of best preserving that Divinely granted trust--life--with which the individual has been charged. Conversely, human healing might even be deemed an interference with Divine Will.

This article will examine the philosophical underpinnings of the twin concepts of disease and medical healing in both the Western and Jewish traditions. Next, the article will analyze the concept of informed consent, as it is understood in the two legal traditions. Practical consequences which emanate from the different ideologies will be compared to determine how they influence the individual's rights of choice and treatment.

Jewish Biblical/Legal Tradition

Divine Healing versus Human Healing

The concepts of disease and healing in the Western tradition are deemed to result from natural processes. By contrast, these identical concepts, in the Jewish tradition, are seen as a manifestation of the Divine.(9) Seen thus, sickness is viewed as a message from God, and therefore, human healing is to be avoided, or is at best, unnecessary, useless, or even interdicted. Instead, man must seek out the Divine as the source for his healing by personal introspection, or by expert religious advice.

In the early Rabbinic literature, there are two apparently contradictory schools of thought. One school, best described by Nachmanides,(10) posits that Divine healing is the exclusive source of medical treatment, whereas the second school, that of Maimonides,(11) looks to human healing as an equally legitimate repository for such treatment. The normative view recognizes the merits of both schools of thought in their appropriate setting, and, suggests that human healing is, today, no longer contraindicated.(12) This position results from the spiritual evolution of mankind. At an earlier stage of human development, when the individual functioned at a high spiritual level, the Divine was the sole repository for disease as well as healing and comfort. In today's times, however, most of mankind no longer operates at this superior spiritual level and, therefore, does not possess the ability to directly seek spiritual intervention. Thus, man should fulfill his quest for solace with human medical intervention as described by Maimonides. Divine healing is a gift reserved for that stage of human development which corresponds to function at a higher spiritual level than that which can be achieved by the majority of mankind today.(13)

Lest he rely exclusively on miracles, man is admonished to seek out medical treatment. The prescription to search for medical relief from pain is most simply analogized by Maimonides to man's similar obligation to feed himself in order to reverse the pain and illness due to hunger.(14) Thus, all recent Rabbinic authorities have come to regard man's pursuit of human healing as legitimate, provided that pursuit recognizes the Divine component to any medical transaction, as is the case for all human events.

Because the provenance of healing rests ultimately with the Divine, the role of the physician comes to be viewed as a medium of Divine instrumentation. In essence, the medical provider becomes an agent of the Divine Will. In accordance with his status as an intermediary, the medical provider is obligated to exercise the highest standard of care recognized by the medical profession. Given the mandate to treat and the obligation to be treated imposed respectively on the physician(15) and the patient(16) more subtle distinctions are drawn regarding questions as to whether all medical therapy is compulsory.

Obligation to Treat versus Obligation to Be Treated

Informed Consent. The issue of informed consent can be explored from the vantage point of three perspectives, (1) consent to treatment, (2) competence, and (3) the withdrawal of treatment.

Under which circumstances does the provider exercise his obligation to treat and the patient his mandate to be treated? The circumstances are determined by the nature of the medical treatment and the success of this therapy. The greater the success of treatment, the greater becomes the corresponding legal mandate to treat, and, the converse proposition is applied equally.(17) The success of a course of treatment is purely a question of the best medical determination. To the extent that a medical diagnosis or therapy is clearly beneficial, the mandate to treat is strong. Conversely, the weaker the diagnosis or the more doubtful the therapy, the requirement to treat is similarly weaker. Consequently, if the therapeutic nature of the medical treatment is experimental, unproven, anecdotal, or dubious, the physician's requirement to treat and the patient's requirement to seek treatment is no longer obligatory.

How strongly does this impact the patient and his autonomous rights to self determination? When the treatment is clearly beneficial, there is no requirement for an informed consent from the patient. On the other hand, a course of treatment which is not beneficial cannot be undertaken even with the patient's consent. Furthermore, to what extent ought the patient to be permitted to assume risks in his pursuit of medical treatment? The mandate to contribute to risk taking is, similarly, in direct proportion to the degree of success for treatment.(18) Scientific data will facilitate this determination. Where the treatment of choice is safe, the treatment must be followed. If, on the other hand, that treatment is dangerous or too risky, medical treatment should be withheld.

Where, however, there may exist alternative courses of treatment or where treatment is uncertain, only then is the patient granted the ability to exercise autonomy.(19) Since the goal of any treatment is, ultimately, to preserve life, medical treatment approaching that end is imperative. Adherence to questionable medical protocols, short of life saving treatment, cannot be imposed on the patient nor can he be compelled to undertake the...