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Pain: Ethics, Culture, and Informed Consent to Relief

Published online by Cambridge University Press:  01 January 2021

Extract

As medical technology becomes more sophisticate the ability to manipulate nature and manage disease forces the dilemma of when can becomes ought. Indeed, most bioethical discourse is framed in terms of balancing the values and interests and the benefits and burdens that inform principled decisions about how, when, and whether interventions should occur. Yet, despite advances in science and technology, one caregiver mandate remains as constant and compelling as it was for the earliest shaman—the relief of pain. Even when cure is impossible, the physician's duty of care includes palliation. Moreover, the centrality of this obligation is both unquestioned and universal, transcending time and cultural boundaries.

Although universally acknowledged, pain is a complex phenomenon for both the patient and the caregiver, influenced as much by personal values and cultural traditions as by physiological injury and disease.

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Article
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Copyright © American Society of Law, Medicine and Ethics 1996

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References

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See, for example, Mohr v. Williams, 95 Minn. 261 (1905) (holding that “the free citizen's first and greatest right, which underlies all others—the right to himself—” precludes even the most skillful medical or surgical intervention without patient consent); Pratt v. Davis, 224 Ill. 300 (1906) (holding that, unless there is an emergency or a circumstance where disclosure would be harmful to the patient, a capable individual must be consulted and must give consent before surgery can be performed); Natanson v. Kline, 86 Kan. 393 (1960) (upholding the necessity for physicians to employ discretion in disclosure of information to patients); Salgo v. Leland Stanford University Board of Trustees, 154 Cal. App. 2d 560 (1970) (introducing the term “informed consent,” and holding that the physician is under an affirmative duty to disclose the risks, benefits, and alternatives to the proposed treatment intervention); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972) (holding that the physician is obliged to provide sufficient information about a procedure's risks so that a reasonable patient can make an informed decision); Moore v. Regents of the University of California, 51 Cal. 3d 120 (1990) (holding that informed consent requires physician disclosure of “personal interests unrelated to the patient's health” but potentially affecting medical judgment); and Arato v. Avedon, 5 Cal. 4th 1172 (1993) (holding that the duty to obtain informed consent does not require a physician to disclose a patient's statistical life expectancy).Google Scholar
Presently, each of the fifty states and the District of Columbia have legally recognized patient rights by adopting an informed consent doctrine. In addition, the U.S. Congress has expressly legislated patients' rights to individualized medical decision making. The Patient Self-Determination Act (PSDA) (42 U.S.C.A. § 1395cc(f) (1992)) advocates patients expressing their wishes about future treatment in the event they become incapacitated. PSDA requires all health care facilities funded by Medicare or Medicaid to inform patients on admission of their right to execute advance directives under the laws of the respective states. Although most people use these written instruments prospectively to refuse care, advance directives are value neutral and can be used to request care as well.Google Scholar
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In contrast to the battery analysis, the negligence theory of liability examines the defendant's unintended harmful act or failure to act. The elements required to establish negligence include the presence of a legal duty, the breach of that duty, measurable injury, a direct causal link between the breach and the injury, and a proximate causal relation between the act and the injury. Thus, to win the case, the patient must prove physical injury. See Rosovsky, , id. at §1.3. Advocates of negligence theory applaud its allowing physicians to invoke many defenses and acknowledging that most physicians act in good faith. Opponents argue that negligence theory reduces the informed consent doctrine to a “failure to warn law,” based more on professional liability and the expectations of the medical profession than on patient decision making and self-determination. See Katz, J., “Informed Consent: A Fairy Tale? Law's Vision,” University of Pittsburgh Law Review, 39 (1977): At 139. Other commentators argue that the negligence theory's emphasis on proving physical harm ignores the rights-based aspects of informed consent. See Dworkin, R., “Medical Law and Ethics in the Post-Autonomy Age,” Indiana Law Journal, 68 (1993): At 729 (“The loss of dignity, autonomy, free choice, and bodily integrity that is so exalted in the rhetoric of informed consent is worth nothing at judgment time.”).Google Scholar
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Note the civil rights and feminist movements in general, with examples from education (the de jure and de facto integration of religious and ethnic minorities into educational institutions; the admission of women into formerly all-male schools); art (serious artistic criticism of the highly suggestive, and to some offensive, art; greater acceptance of homosexuality as an artistic subject and homosexuals as actors in drama); sports (the acceptance and success of athletes from ethnic minorities and alternative sexual orientation); professions (women and (religious and ethnic) minorities increasing their presence in medicine, law, and academic faculties). Note the parallel consumer movement awakening the buying public to its right to full disclosure as a prerequisite to informed purchasing.Google Scholar
Mental capacity or competence has been defined as “[s]uch a measure of intelligence, understanding, memory, and judgment relative to the particular transaction (e.g., making of will or entering into contract) as will enable the person to understand the nature, terms, and effect of his or her act.” Black's Law Dictionary (St. Paul: West, 6th ed., 1990): At 986. Although the terms capacity and competence are often used interchangeably, for bioethics purposes there are important distinctions that go beyond semantics. Competence is technically a legal designation made only by a court, whereas health care decisions are a matter of medical determination. Because the legal system is rarely involved in decision making in the clinical setting, it has become customary to refer to the patient's capacity to make health care decisions, and to refer to the decisionally capacitated or capable individual. See Lo, B., “Assessing Decision-Making Capacity,” Law, Medicine & Health Care, 18 (1990): 196–97; see also Wanzer, et al, supra note 26, at 845.Google Scholar
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For example, a study found that traditional Navajo culture includes the belief that reality, rather than being reflected in language, is shaped by language. Because great importance is placed on avoiding negative thoughts or speech, policies requiring discussion of end-of-life issues in compliance with PSDA become ethically problematic in the Navajo community. See Carrese, Rhodes, , supra note 1. Likewise, attitudinal variations have been found toward disclosure of diagnosis and prognosis of terminal illness and end-of-life decision making among elderly subjects from different ethnic backgrounds. Although European Americans and African Americans preferred the patient autonomy model, Korean Americans and Mexican Americans preferred that family members deal with medical information and decision making. See Blackhall, et al, supra note 1; and Murphy, et al, supra note 1.Google Scholar
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Lawrence Gostin proposes that the conflict between the patient autonomy-based informed consent doctrine and the family-centered model of caring may require legal reform to promote cultural diversity in health care decision making. He suggests a standard of disclosure based on patient values, including the right to decide whether to receive medical information. Gostin, L.O., “Informed Consent, Cultural Sensitivity and Respect for Persons,” JAMA, 274 (1995): 844-45.CrossRefGoogle Scholar
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