Informed consent: an empty promise? A comparative analysis between Italy and England, Wales, and Scotland

Abstract

Informed consent (IC), as the process of sharing information between patients and clinicians before undertaking a medical treatment, signals a number of ‘good intentions’. IC, in its theoretical formulation, can be seen as valuing the expertise and contributions of both clinicians and patients, giving expression to the aspirations of both promoting patient autonomy and facilitating doctors to work in partnership with their patients. The Supreme Court judgment in Montgomery v Lanarkshire Health Board1 and the Italian legislation on IC2 are, in this respect, worthy of analysis as both provide valid examples of these ‘good intentions’. However, the reality of how IC has been translated in courtrooms does not always match these expectations. This article, through a comparative reflection, will claim that a gap between the ‘law in theory’ and the ‘law in practice’ is common to both legal systems. The article ultimately claims that changes in both legal and policy approach are needed in order to better safeguard IC.