Thoughts on the Medical Consent Process and Implications for the Relationship Between Courts, Legal Advocates and Clients

Yesterday, I had a bone marrow biopsy, as part of my ongoing medical care dealing with bone marrow cancer.  That biopsy is not my favorite thing, but let me tell you, as often at Hopkins, you are reminded just what a difference a skilled and sensitive person doing the procedure can make.

The thing that has never happened before to me in all my dealings with the medical system, and that really set me thinking, was that, during the consent process, after briefly describing each risk, the nurse explicitly told me what she would be doing to minimize that risk.

It turned the formal consent process, often treated as a meaningless imposition on all involved, into an opportunity for making the two of us into a team.  The nurse communicated her concern for me, I could have pointed to any risks I was worried about, or had reason to believe might have been greater than usual, and the document had a purpose.

In contrast, I could not but help recall how, decades ago, I learned of an institutional public defender in which the lawyers considered it their task, in obtaining the consent of their clients to a guilty plea to, and directly quoting here, to “break the client.”  In other words, as the justification went, they were so certain that the client would be convicted if he went to trial, so certain of the terrible sentencing consequences, and so sure that the reluctance to plead came from irrelevant considerations like a refusal to admit guilt to the family, that they felt a moral obligation to “break the client.”  When I was telling a doctor friend about this, he said it reminded him of Guantanamo.

Now, I trust that most advocates do not see their relationship with their clients that way, but it would be good to think about ways that courts, lawyers, nonlawyer advocates and others could see the benefits of full transparency, including the communication and discussion or risks and how to avoid them, as something that would strengthen the trust of the client or litigant in the system, rather than the opposite.

For example, judges, in explaining the possible consequences of failing to obey a court order, could do this in a way that suggested it was about helping the person being ordered, rather than just frightening them, maybe compliance would be greater.  Maybe we need to be even more sensitive to how a discussion between lawyer and client, in both the civil and criminal areas, should include more of a discussion of risks and benefits of different choices, and of what the lawyer and client could do together to minimize those risks.

In the plea example above, would it not be better for the lawyer to think of how to communicate a deep concern for the client’s interests, rather than how to terrorize him. (And, surely, just the use of that language can only color the interaction.)

Please share your thoughts.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
This entry was posted in Attorney-Client, Criminal Law, Defender Programs, Judicial Ethics, Legal Ethics, Medical System Comparision, Personal, Public Defender, Transparency. Bookmark the permalink.

2 Responses to Thoughts on the Medical Consent Process and Implications for the Relationship Between Courts, Legal Advocates and Clients

  1. Peter Fielding says:

    Where to begin. I suppose disclosure should be first. More than 45 years as surgeon, teacher of medicine, research and medical admin. So why a response on a legal blog. Richard Zorza is fond of connecting the medical and legal professions and their practice despite there profound differences. I get the feeling that he would like to put more compassion into the legal process than is usually on view. It is clear that Richard was recently very fortunate at Johns Hopkins to have been engaged by a nurse who understood not only the mundane part of Informed Consent but its meaning and purpose. How rare is that for a person to actually understand the underlying value of an engagement about fear ( aka risks) of an up-coming procedure, routine for the professional but usually frightening for the patient.

    So to the generalization.

    In Medicine we clearly distinguish between the individual and their disease process with some exceptions for those conditions which have a self-induced component . Even in dealing with the consequences of obesity , smoking , addiction etc we should perhaps maintain this distinction. Having the disease does not categories the person into good or evil; a non judgmental approach is meant to pervade all our dealings with people when we call them patients.

    By contrast , and as seen just from my viewpoint, there seems to be an underlying judgmental approach to people who for one reason or another get tangled in the legal system in which ( more often than not ) those who are guilty are “bad” and those who are innocent are ” good” . Expressed differently there is less of a distinction for those in the legal world between the circumstances of an event and the root causes of the event and assumes that all people know the difference between right and wrong and have the free will to make those choices of action or behavior.

    Perhaps what Richard is trying to say is that the notions of compassion and understanding can and should be in greater evidence in the affairs of the Legal Profession. This approach would be far more cost effective and , from the societal viewpoint, is the right thing to do.

    Humanity for the majority leaving judgmental actions for the minority of transgressions.

    Peter Fielding

  2. George Chandler says:

    I’ve always made it my business to lay out all the risks and tradeoffs that I can think of to the client. This is what one does anyway when deciding whether or not to take a case – why wouldn’t you share that process with the client?

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