Will health care reform affect informed consent?

Physicians will discuss cost of treatment

Physicians will need to give more thought to whether and how to discuss the costs of care with patients as a result of health care reform, according to Mark A. Hall, JD, professor of law and public health at Wake Forest University in Winston-Salem, NC.

“Before reform, discussing treatment costs was unmanageable because patients’ insurance situations varied so widely,” he explains. “Now, with coverage becoming more universal and more standardized, it is more feasible to know what portion of treatment costs, roughly speaking, patients might have to pay.”

Out-of-pocket costs obviously are important to patients in deciding what treatment is best and most feasible, and ignoring patients’ costs leads to poor compliance and less effective care, argues Hall. “Therefore, physicians bear some responsibility for considering treatment costs, in some fashion, when discussing treatment options with patients,” he says.

The Patient Protection and Affordable Care Act (PPACA) won’t necessarily adversely affect the informed consent process, says Andrew Flescher, PhD, associate professor of preventive medicine at the Center for Medical Humanities, Compassionate Care, and Bioethics at State University of New York, Stony Brook. “The question of whether or not a patient is made fully aware of what procedures he or she will undergo, once they are approved, is separate from the extent to which such procedures will, in the first place, continue to be as easily approved as they have in the past,” he explains.

Flescher says that the PPACA rightly incentivizes health care providers, especially hospitals, to be more efficient in health care provision, by rewarding them when they furnish evidence that they are achieving better outcomes, reducing the amount of iatrogenic deaths, and repeating fewer tests as those just conducted at nearby community hospitals.

“But it does not disincentivize health care providers from fulfilling their ability to keep patients as autonomous agents in their care, privy to being made aware of exactly what will be done to them and how,” says Flescher. “Now, perhaps in a larger, indirect sense, the populace will be less informed, or rather more confused, about what health care services in the future will be harder for them to access. But this doesn’t have to do with ‘consent,’ per se.”

In any case, says Flescher, it is the burden of insurance companies, not physicians, to inform their enrollees comprehensively as to what expectations they should have about coverage.

A provision in the PPACA authorizes the creation of a program to develop certified patient decision aids for use during the informed consent process to promote shared decision-making. “There have even been recent suggestions that Medicare reimbursement be contingent on use of a decision aid,”1 says J.S. Blumenthal-Barby, PhD, MA, assistant professor of medicine and medical ethics at Baylor College of Medicine in Houston, TX.

Use of decision aids may result in a “more consistent and ethically robust” informed consent process, says Blumenthal-Barby, but one of the challenging ethical questions is whether these decision aids should include information about the costs of the options.

“There is an ethical argument to be made from a ‘reasonable person’ standard of disclosure that most patients would deem such information material. Yet including cost information is difficult, since costs will vary depending on individual patients’ insurance coverage,” she says. “And, cost information could sway patients away from a choice that they would otherwise make and that is in their best interest.”


1. Lee, EO, Emanuel EJ. Shared decision making to improve care and reduce costs. N Engl J Med 2013;368:6-8.


• J.S. Blumenthal-Barby, PhD, MA, Assistant Professor of Medicine and Medical Ethics, Center for Medical Ethics and Health Policy, Baylor College of Medicine, Houston, TX. Phone: (713) 798-3785. E-mail: jennifer.blumenthal-barby@bcm.edu.

• Mark A. Hall, JD, Professor of Law and Public Health, Wake Forest University, Winston-Salem, NC. Phone: (336) 716-9807. E-mail: mhall@wakehealth.edu.

• Andrew Flescher, PhD, Associate Professor of Preventive Medicine, Center for Medical Humanities, Compassionate Care, and Bioethics, State University of New York, Stony Brook. Phone: (631) 638-1014. E-mail: andrew.flescher@stonybrook.edu.