Liability and the legal duty to inform in research

Authored by: Ma’n H. Zawati

Routledge Handbook of Medical Law and Ethics

Print publication date:  August  2014
Online publication date:  September  2014

Print ISBN: 9780415628181
eBook ISBN: 9780203796184
Adobe ISBN: 9781134448654


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Early medicine was characterized by paternalistic medical practices. The Ancient Greek physician Hippocrates, for example, opined that ‘[physicians] will apply dietetic measures for the benefit of the sick according to [their] ability and judgment. [They] will keep them from harm and justice’ (Hippocratic Oath 1943). In the modern era, medical paternalism continued to be legitimized through a combination of medical beneficence and a ‘pledge [from physicians] to do their best to protect patients from harm’ (Chin 2002: 152; Gillon 1985: 1971; Weiss 1985: 184–5; Husak 1981: 27). Contemporary authors have defined paternalism as an ‘interference with a person’s freedom of action or freedom of information, or the deliberate dissemination of misinformation, where the alleged justification of interfering or misinforming is that it is for the good of the person who is interfered with or misinformed’ (Buchanan 1978: 372; McCoy 2008; Rich 2006). Consider, for example, the 1847 Code of Ethics of the American Medical Association (AMA), which reads:

The obedience of a patient to the prescriptions of his physician should be prompt and implicit. He should never permit his own crude opinions as to their fitness, to influence his attention to them. A failure in one particular may render an otherwise judicious treatment dangerous, and even fatal.

(Chin 2002: 152, our emphasis)

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