A Brief Discussion on Regulation of the Medical Profession and Informed Consent

By: Scott Robertson, Spring 2018 Intern, HeLP Legal Services Clinic

In the United States, regulation of the medical profession began around 1684 when colonial law in New York prohibited the practice of medicine “without the advice and consent of such as are skillful in the said Arts.” More recently, the Supreme Court has left this authority to the states by recognizing that the police powers reserved to the states by the Tenth Amendment justify state regulation of trades involving the public health. Through these powers, states have the ability to both regulate healthcare and to form medical boards, which function as state agencies.  State medical boards, consisting mostly of actively practicing physicians, regulate the practice of medicine by defining the scope of what constitutes a medical practice, establishing licensing requirements for physicians, and instituting disciplinary measures.  Medical boards may discipline physicians for any departure from or failure to conform to the minimal standards of acceptable and prevailing medical practice and for treatment or diagnostic procedures that are detrimental to the patient as determined by the minimal standards of acceptable medical care. A medical board may provide discipline by placing physicians on probation; administering public reprimands; suspending, limiting, and revoking licenses; imposing fines; and other statutory punishments.

The state legislatures, consisting mostly of attorneys and business owners, enact laws and regulations to dictate the conduct of a licensed physician in specific circumstances.  These statutes provide a portion of the minimal standards of acceptable care by which a physician must abide in order to avoid professional discipline from medical boards and potential medical malpractice claims by patients.  For example, every state requires that medical practitioners screen newborn babies for genetic and metabolic disorders, and every state requires physicians to obtain some level of informed consent from patients before they may undergo specific medical interventions.

Informed consent requirements have evolved quite drastically through the years.  Justice Cardozo famously stated that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body . . . .” Years later, courts heeded these insightful words and moved from a period where a patient served merely as a “passive spectator” in the healthcare process, to one where patient engagement and decision making have become so vital that the government has made them central components to the receipt of federal funding. Thus, in today’s healthcare environment a patient has a right to hear and understand information about the therapeutic options a physician recommends before deciding to undergo a major procedure or treatment.

Informed consent standards may stem from multiple avenues: a physician’s duty to disclose what is reasonable under the circumstances based upon the patient’s need, a   physician’s duty to disclose risks that a reasonable patient would find material, or promulgation of specific requirements by statute. For example, the Georgia Women’s Right to Know Act of 2005 outlines the information a physician must disclose and discuss with a patient prior to performing an abortion in the state.  While the legislature left physicians room to exercise their own professional judgment in determining the specific information a reasonable patient would find material within some requirements, other requirements force a physician to convey in a scripted manner.