The usual secular understanding of informed consent is predicated upon the right of the individual to express his autonomy by deciding which actions he will or will not allow to be performed on his body. But as I have written previously, Judaism takes a paternalistic view of many human endeavors, including the practice of medicine. Since man was created in the image of G-d and his body is the property of the Creator, man is given only custodial rights to his body. But if man is charged with being the prudent steward of his body, required to accept medical treatment, this would seem to preclude the possibility of there being a meaningful concept of informed consent in Jewish law.
This is not the case! Judaism requires a type of informed consent that while not identical to the secular concept, in some ways is actually more stringent than its secular counterpart. The key distinction between the secular and the Jewish approaches to informed consent is the difference between rights and obligations. The secular emphasis on autonomy inescapably leads to the conclusion that the patient has the right to refuse any and all medical information. In Judaism, both becoming informed and giving consent for appropriate treatment are required.
The situation is akin to a money manager entrusted with the funds of a client. He is obligated to research all reasonable investment options. After accumulating the necessary information, he MUST decide where to invest his client’s money. He MUST invest the money because that is his mandate. Only if he feels that all investment options are unacceptable for his client, based on sound reasoning, may he leave the money as cash. Similarly, as the prudent steward of one’s own body, one MUST acquaint oneself with all reasonable medical options, including inaction, before making a decision. But after evaluating all reasonable options, the Torah requires one to choose the sensible option, the one that the prudent steward would choose.
Were medicine to be a monolith, with every problem having an obvious answer upon which all physicians agreed, then the individual would have little say in what medical treatments he wishes to have. All of the patient’s research would necessarily lead to the same treatment option and he would be compelled to follow his physician’s advice. But in reality, most medical decisions are composed of multiple issues, not all of which are purely medical (social/psychological), but each of which requires evaluation and consultation. Only the most straight-forward problems have obvious answers.
Some decisions are so obvious, that the individual really has no choice. A person diagnosed with bacterial meningitis requires an antibiotic. Refusal to accept the medicine means almost certain death. The risk of ingesting the drug is only a slim chance of a (usually treatable) allergic reaction. The prudent steward MUST accept the antibiotic once the medical reality is laid before him, and in such a circumstance, we may coerce him to “voluntarily” consent to the treatment. How can coerced consent be valid? We merely coerce him to fulfill his obligation of being the prudent steward. This is analogous to the reality of the American “voluntary” tax system that coerces one to voluntary fulfill his obligation to pay taxes.
But what of the patient faced with hazardous surgery? There are many issues to be investigated and clarified before a judicious decision can be made. What are the risks? How long may the surgery be safely postponed? What is the expected outcome? Are there other reasonable options. Answering these questions represents the “informed” part of Jewish informed consent. But once all of the information has been gathered and assimilated, the patient MUST make a decision.
Insight can be gained into the view of informed consent in Judaism from a responsa of Rabbi Moshe Feinstein. He clearly accepted that patient input is crucial in medical decision-making. Only in cases where the treatment is obvious and unequivocal does he advocate coercion (and clearly not physical coercion). But in cases where the patient refuses treatment, he distinguishes between and the patient who is afraid of the pain associated with efficacious treatment and the patient who does not trust the judgment of his doctor (Igros Moshe, Choshen Mishpat II:73e). The former patient should be convinced to fulfill his obligation to receive the appropriate therapy. For the latter patient, we must find a physician whom the patient trusts in order to receive the patient’s consent. This distinction drives home the concept that one is required to accept the rational therapy, but may refuse treatment until he is convinced that the proposed course of treatment is prudent.
© 1999 Daniel Eisenberg, MD