The common rule's 'reasonable person' standard for informed consent

Green bioethics, patient autonomy and informed consent in healthcare

Green bioethics is an area of research and scholarship that examines the impact of healthcare practices and policies on the environment and emphasises environmental values, such as ecological sustainability and stewardship. Some green bioethicists have argued that healthcare providers should inform patients about the environmental impacts of treatments and advocate for options that minimise adverse impacts. While disclosure of information pertaining to the environmental impacts of treatments could facilitate autonomous decision-making and strengthen the patient-provider relationship in situations where patients have clearly expressed environmental concerns, it may have the opposite effect in other situations if makes patients feel like they are being judged or manipulated. We argue, therefore, that there is not a generalisable duty to disclose environmental impact information to all patients during the consent process. Providers who practice green bioethics should focus on advocating for system-level changes in healthcare financing, organisation and delivery and use discretion when bringing up environmental concerns in their encounters with patients.

Consent for Medical Treatment: What is 'Reasonable'?

The General Medical Council (GMC) instructs doctors to act 'reasonably' in obtaining consent from patients. However, the GMC does not explain what it means to be reasonable: it is left to doctors to figure out the substance of this instruction. The GMC relies on the Supreme Court's judgment in Montgomery v Lanarkshire Health Board; and it can be assumed that the judges' idea of reasonability is adopted. The aim of this paper is to flesh out this idea of reasonability. This idea is commonly personified as the audience that has to be satisfied by the doctor's justification for offering, or withholding, certain treatments and related information. In case law, this audience shifted from a reasonable doctor to a 'reasonable person in the patient's position'; and Montgomery expands the audience to include 'particular' patients, too. Senior judges have clarified that the reasonable person is a normative ideal, and not a sociological construct; but they do not set out the characteristics of this ideal. John Rawls has conceived the reasonable person-ideal as one that pursues fair terms of co-operation with other members of society. An alternative ideal can be inferred from the feminist ethic of care. However, the reasonable patient from Montgomery does not align with either theoretical ideal; but, instead, is an entirely rational being. Such a conception conflicts with both real-life constraints on rationality and the doctor's duty to care for the patient, and it challenges the practice of medicine.

Genetic Data Aren't So Special: Causes and Implications of Reidentification

Genetic information is widely thought to pose unique risks of reidentifying individuals. Genetic data reveals a great deal about who we are and, the standard view holds, should consequently be treated differently from other types of data. Contrary to this view, we argue that the dangers of reidentification for genetic and nongenetic data-including health, financial, and consumer information-are more similar than has been recognized. Before different requirements are imposed around sharing genetic information, proponents of the standard view must show that they are in fact necessary. We further argue that the similarities between genetic and nongenetic information have important implications for communicating risks during consent for health care and research. While patients and research participants need to be more aware of pervasive data-sharing practices, consent forms are the wrong place to provide this education. Instead, health systems should engage with patients throughout patient care to educate them about data-sharing practices.

Reasonable Persons, Autonomous Persons, and Lady Hale: Determining a Standard for Risk Disclosure

Among various kinds of disclosures typically required in research as well as in clinical scenarios, risk information figures prominently. A key question is, what kinds of risk information would the reasonable person want to know? I will argue, however, that the reasonable person construct is and always has been incapable of settling this very question. After parsing the nebulous if not "contentless" character of the reasonable person, I will explain how Western courts have actually adjudicated cases of "negligent nondisclosure," that is, cases in which patient-plaintiffs allege that their informed consent rights were violated by the failure of their health providers to inform them of reasonably foreseeable risks that subsequently materialized. To support my argument, I will scrutinize the landmark decision by the United Kingdom's Supreme Court in Montgomery v. Lanarkshire Health Board and, in particular, Justice Brenda Hale's concurrence.

Benefit by design: Determining the 'value' of donor human milk and medical products derived from human milk in NICU

The use of donor human milk to provide therapeutic benefit to infants should only proceed where there is positive 'value'. This can be determined through an assessment of the benefit and the known risks. The emergence of new products derived from human milk requires new value assessments. The known hazards in human milk are modified by differences in the donor selection, processing methods and intended use and result in a unique risk assessment where any of these factors vary. The human source of the raw product requires high ethical standards in the design of these services with care taken to protect donors and recipients from harm. Any supplement to maternal milk should be provided cautiously to avoid displacement of maternal lactation.

The Reasonable Person Standard for Research Disclosure: A Reasonable Addition to the Common Rule

The revised Common Rule adopts the reasonable person standard to guide research disclosure. Some members of the research community contend that the standard is confusing and ill-suited to the research oversight system. Yet the revised rule is not as radical as it might seem. During the 1970s, judges started using the standard to evaluate negligence claims brought by injured patients who said doctors had failed to obtain informed consent to the harmful procedures. In its influential Belmont Report, the National Commission recommended application of a "reasonable volunteer standard" to guide IRBs evaluating research disclosures. Evidence also suggests that IRBs often invoke the reasonable person standard in deliberations about consent forms. But past application of the standard has been informal and uneven. Robust application of the reasonable person standard will require researchers and IRBs to learn more about what ordinary people want and need to know about the studies they are invited to join. Input from people with personal experience as study participants could be particularly useful to this effort.