ABSTRACT
Informed consent is commonly used as shorthand for two distinct duties: the duty to obtain the patient's consent before treatment, and the duty to ensure that the patient has been properly informed about its risks and benefits. The judiciary has been hostile to the use of the tort of battery in all but the most exceptional circumstances, and a claimant alleging negligent disclosure faces two significant obstacles: first, the courts' definition of the relevant standard of care makes it extremely difficult to establish that a doctor's nondisclosure was negligent, and second, proving causation is, as they explain below, virtually impossible. A patient's consent to medical treatment will only absolves the medical practitioner from liability in battery for unlawful touching if the consent is 'real': the patient must know what she is consenting to. The 'reasonable doctor' test does, however, suffer from a number of disadvantages. First, and most importantly, it does not protect the patient's right to self-determination.
