Marijuana, Prescription Requirements and the Doctrine of Informed Consent

It used to be common for physicians to withhold information and even to misinform patients “for their own good.” Authorities as venerable as Hippocrates advocated that some information be concealed from patients. Today, most of us would find it outrageous if a physician misinformed his patient to perform surgery regardless of the reasons. Changes in public opinion and a series of court cases have overruled medical paternalism. In the 1914 case Schloendorff v. Society of New York Hospital, Benjamin Cardozo wrote:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.

It wasn’t until the late 1950s and in particular the 1957 case Salgo v. Leland Stanford, however, that the doctrine of informed consent (DIC) became well accepted in practice and in medical ethics. The doctrine of informed consent has both consequentialist and deontological justifications. On the consequentialist side, informed consent generally leads to better medical outcomes. Patients are also better able to understand their own overall interests than are others so the DIC leads to better overall welfare. On the deontological side, it is today widely accepted that all patients have a right to autonomy and that physicians cannot justly abrogate that right even in the patient’s own interest. It would be wrong to require someone to undergo surgery even if such surgery was necessary to save their life.

In an interesting paper in the Journal of Medical Ethics Jessica Flanigan argues that the same reasons which support the doctrine of informed consent also support a patient’s right to use pharmaceuticals without a doctor’s prescription. Based on Peltzman and Temin she argues that the consequential outcomes of prescription-only have not been good, at least not overwhelmingly so. Most importantly, patient autonomy applies just as much to the choice to medicate as to the refusal to medicate:

Citizens have rights of self-medication for the same reasons that they have rights of informed consent. The prescription drug system has bad consequences and it privileges regulators’ and physicians’ judgements about a patient’s health over the patient’s judgement about her overall well-being. Most troublingly, the prescription drug system violates patients’ rights.

Instead, I propose that prohibitive pharmaceutical policies, which are a kind of strong paternalism, be replaced by nonprohibitive policies that enable patients to obtain whatever medicines they choose while promoting informed consumer choices by making expert advice readily available.

Notice that the argument is not simply that prescription only requirements are against social welfare but rather that support for the doctrine of informed consent also supports the right to use pharmaceuticals without getting the consent of an official.

I am pleased that the voters in Colorado and Washington approved adults to use marijuana for any purpose. In the future people will be shocked that we arrested millions for marijuana use in the same way that we are shocked that doctors used to perform surgeries without a patient’s informed consent.