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Megan S. Wright, Resuscitating Consent, 63 Bos. Coll. L. Rev. 887 (2022).

Contemporary discussions of the law and ethics of informed consent to medical treatment tend to focus on the process of information communication, including the scope of the disclosures physicians are required to make, and the ability of patients to truly understand those disclosures and integrate them into their medical decision-making. Without dismissing the importance of communication and understanding in securing consent to treatment, Prof. Megan Wright’s article, Resuscitating Consent, directs the reader’s attention to a fundamental concept that seems to have been overlooked as the law and practice of informed consent have developed. Namely, that the principle of patient autonomy upon which informed consent doctrine is based has a corporeal – not just cognitive – component.

Prof. Wright wisely reminds readers that respect for bodily integrity was a foundational principle in the development of autonomy-based legal protections for patients. However, evidence suggests that health care providers in acute care hospitals are willing to violate this principle by imposing medical treatment against contemporaneous patient objections. Prof. Wright argues that all patients – not just those deemed to have decision-making capacity – have an absolute right to refuse treatment as a matter of bodily autonomy. “[P]atients,” according to Prof. Wright, “continue to have bodily integrity interests that should be respected even if they acquire decisional impairments and are deemed incapable of autonomy understood as capacity for rationality.” Contemporary U.S. law, however, fails to adequately protect these interests, and this article offers several compelling recommendations for addressing this issue.

By re-centering bodily integrity at the core of consent to treatment, Prof. Wright challenges the idea that the corollary to “informed consent” must be “informed refusal.” She supports her argument by discussing the theoretical basis for autonomy as a foundational principle of medical ethics; the historical development of informed consent doctrine; the negative impact that treatment over objection has on patients, providers, and the rule of law; and contemporary legal developments in the field of supportive decision-making for patients with cognitive impairments. While recognizing and reinforcing the importance of information and cognition to decisions to proceed with treatment, Prof. Wright argues that the right to maintain one’s bodily integrity by refusing treatment is not conditional on cognitive capacity or understanding. Thus, physicians who require formal or informal competency assessments when patients refuse care are improperly acting as gatekeepers to a right that should be unconditional.

Prof. Wright’s primary recommendation in this article is that any gatekeeping role be left to the judiciary, rather than to individual health care providers. As a model, she points to the New York Family Health Care Decisions Act, which establishes “absolute legal capacity to refuse medical treatment” that can only be overridden if “a court judges the patient to be incompetent.” She also proposes that surrogate decision-makers and agents acting pursuant to health care powers of attorney have similarly limited authority to override a contemporaneous treatment refusal. To provide additional protections for patients, she recommends that health care providers who question a refusing patient’s decisional capacity first prioritize restoring decisional capacity if the patient is amenable, providing assistive communication technology, and inviting family members to engage in persuasive discussion with the patient. However, if these attempts fail, the patient refusal must be respected unless the health care team seeks and secures court approval. Failure to do so, under the model Prof. Wright proposes, would lead to tort liability.

Prof. Wright acknowledges and aptly addresses several challenges to this proposed approach, including arguments about the prioritization of health at all costs, concerns about provider autonomy, potential harms to third parties, and the value of existing exceptions to consent requirements. The one counterargument I believe deserves further discussion is about patient refusals in the context of medical emergencies and time-sensitive decisions. Prof. Wright recognizes the importance of the emergency exception to informed consent in cases where there is no time to secure consent, but argues that in the case of “treatment over objection, it would be perverse to allow providers to lawfully rely on the emergency exception to override their patient’s prior treatment refusal” (as in cases like Werth v. Taylor (Mich. App. 1991), where a pregnant woman’s consistent refusals to accept blood products for religious reasons was overridden when a medical emergency arose). Prof. Wright argues for making the emergency exception “stricter,” but it would be helpful to further explore the practical implications of such a proposal. For example, Prof. Wright advocates for a clearer path for emergency court petitions, a suggestion that would be bolstered by exploration of the timeliness and efficacy of emergency petitions in other contexts, like guardianship.

The issue of tort liability is an essential piece of this puzzle, and Prof. Wright offers valuable insights into how policymakers could best take advantage of tort law’s deterrent effect in these situations. As Prof. Wright acknowledges, it is only recently that courts have started to consistently recognize that unwanted treatment that improves a patient’s condition or extends their life qualifies as a legally cognizable harm. Prof. Wright’s proposal for tort liability when physicians override contemporaneous treatment refusals without a court order is consistent with this developing trend. Notably, she also acknowledges the ongoing challenges of bringing civil actions in such cases, including the difficulty in finding an attorney to take a dignitary harm case on a contingency fee basis. She suggests several ways in which legislation could address this problem, such as by allowing for statutory damages, attorney’s fees, and punitive damages.

Overall, the article reminds us of the importance of bodily integrity as an element of autonomy-based doctrines like informed consent, at a time when much academic discussion focuses primarily on disclosure and understanding. In doing so, Prof. Wright brings informed consent doctrine back to its roots, so to speak, and asks important questions about how it has developed in the context of treatment refusals.

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Cite as: Nadia Sawicki, Autonomy as Corporeal, Not Just Cognitive, JOTWELL (May 11, 2022) (reviewing Megan S. Wright, Resuscitating Consent, 63 Bos. Coll. L. Rev. 887 (2022)),