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The Commonsense Approach

The doctrine of informed consent is a special case of the broader notion of assumption of risk. Whenever a person knowingly engages in a risky activity, that person consents to the risks of the activity. For this consent to be effective (1) the person must know the risks that are being assumed; (2) he or she must assume these risks voluntarily; and (3) it must not be against public policy to assume the risks. When a person makes a formal agreement (usually written) to accept the risks of an activity, that agreement is called a waiver. A properly executed informed consent is a waiver of the risks of medical treatment. To be effective, a waiver of the risks of medical treatment must meet the same three criteria as other waivers. Informed consent serves an additional, perhaps more important, purpose. In the process of discussing the risks, benefits, and potential alternatives to a given treatment, the physician and the patient have an opportunity to ensure that there are no misunderstandings about the patient's complaint and the proposed treatment.

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