Also known as: informed consent doctrine · informed consent
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
An obligation requiring a physician to disclose material risks of and reasonable alternatives to a proposed treatment. The disclosure enables a competent patient to make a voluntary and informed decision whether to accept or refuse the intervention. Failure to provide the required information can support a claim for battery or negligence if the undisclosed risk materializes and causes harm.
Agreement by a client or former client to a proposed course of lawyer conduct after the lawyer communicates adequate information about material risks and reasonably available alternatives. The consent must be confirmed in writing when the applicable rule so requires. It permits representation that would otherwise be prohibited by conflict-of-interest rules.
Each sense below has its own examples, sources, and questions.
An obligation requiring a physician to disclose material risks of and reasonable alternatives to a proposed treatment. The disclosure enables a competent patient to make a voluntary and informed decision whether to accept or refuse the intervention. Failure to provide the required information can support a claim for battery or negligence if the undisclosed risk materializes and causes harm.
In torts the doctrine protects patient autonomy by requiring physicians to disclose material medical risks and alternatives before treatment. In professional responsibility it permits otherwise prohibited representations once clients receive adequate disclosure of risks and give written consent.
Agreement by a client or former client to a proposed course of lawyer conduct after the lawyer communicates adequate information about material risks and reasonably available alternatives. The consent must be confirmed in writing when the applicable rule so requires. It permits representation that would otherwise be prohibited by conflict-of-interest rules.
Destiny Davis left private practice to join a state agency. While there she was assigned to a regulatory enforcement action against a company she had previously represented on the identical issues. The agency reviewed the prior representation and gave written informed consent for her continued participation.
Delilah Duran’s firm represented Dixon Foods in a contract dispute while another office of the same firm sued Dixon Foods on an unrelated product-liability claim. Dixon Foods refused to give informed consent after full disclosure of the direct adversity, so the firm could not continue both matters.
Damian Decker had served as a law clerk on an arbitration panel that decided a commercial dispute. After leaving the clerkship he sought to represent one of the same parties in related litigation. All parties gave written informed consent, allowing the representation to proceed.
Dustin Donovan discovered that his client’s matter now required informed consent under Rule 1.7 because of a newly arising conflict. He immediately disclosed the circumstances and risks in writing and obtained the client’s informed consent before continuing the representation.
Denise Donovan represented three plaintiffs injured in the same accident. When the defendant offered a lump-sum settlement, she explained the total amount, each client’s share, and the risks of the aggregate deal. Each client signed a written consent after receiving that disclosure.
Diego Duarte joined a new firm that had previously represented a company now adverse to his current client in a substantially related matter. Duarte had acquired no material confidential information. After the former client gave written informed consent, the new firm could represent the current client.
The lawyer must communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Rule 1.0(e) defines informed consent in these terms.
Rule 1.11(d)(2)(i) requires informed consent, confirmed in writing, from the appropriate government agency before the lawyer may participate in such a matter.
Rule 1.12(a) prohibits the representation unless all parties to the proceeding give informed consent confirmed in writing.
…required for medical treatment." After reviewing a long line of relevant state cases, we concluded that "the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Next, we reviewed our own cases on the subject, and stated that "[t]he principle that a…
…Schloendorff v. Society of New York Hospital , 211 N. Y. 125, 129-130, 105 N. E. 92, 93 (1914). The logical corollary of the doctrine of informed consent
…standard should be that of the “reasonable patient” rather than that of the “reasonable medical practitioner.” We agree. The doctrine of informed consent
…in this area without directly interfering with the practice of medicine. See, e. g., Beck & Azari, FDA, Off-Label Use, and Informed Consent
…thereby.” This instruction refers to the doctrine of “informed consent
The lawyer must disclose the existence and nature of all claims or pleas involved and the participation of each person in the settlement, and each client must give consent in a writing signed by the client.
Continued representation is impermissible if the lawyer can no longer reasonably believe competent and diligent representation can be provided to each client, even if the clients previously gave informed consent.