Our society expects its clinicians to attend to disclosure and truth-telling to a greater degree than do other societies. Clearly, procedures on living patients require informed consent as discussed above. Even after death, formal consent from a surrogate is required for medical procedures such as organ donation and autopsy, and for disposition of the body. These precedents suggest the need for consent for nonindicated training procedures. Serious societal interests may supercede consent for postmortem procedures such as autopsies in criminal investigations (and family members are aware of these examinations), but no public consensus exists regarding appropriating bodies for physician training. Furthermore, formal consent is required for harvesting cadaveric organs, despite the great public benefit they offer. Untoward effects of unconsented practice on the newly dead may include further disenfranchisement of minority families who, when asked, tend to consent to training less often than do whites.25,28
Even if issues of family fealty as a basis for requiring consent are set aside, there are at least 3 additional arguments in support of formal consent. One is a pragmatic concern. Should family members learn of a gratuitous procedure, trust in their community health facility and physicians may be damaged. Furthermore, public awareness of this practice might damage trust in the health care system and compromise physicians' claims of professional integrity.
Second, requiring consent promotes security for the living. Our society's norms of upholding the patient's prior wishes (e.g., honoring wills) ensure order in society and promote comfort in the present through assurances about the future regarding the treatment of remains and the welfare of heirs. Regard for family bonds also helps to maintain social order. It follows that deference to the family's wishes regarding the handling of the deceased is appropriate, absent patient instructions.
Third, society authorizes the practice of medicine (a public and societal activity) and provides the normative setting that defines the scope of ethical medical practice (a reflection of collective moral and social values). It is insufficient for the medical profession alone to allow unconsented practice on newly and nearly dead persons. Goldblatt notes that “democratic societies do not permit private individuals to determine what the societal responsibilities of other individuals are and how they are to be met.”29
If consent is a criterion, might it simply be implied through a patient's acceptance of admission to a teaching hospital? Available evidence finds public opposition to this suggestion.26
Moreover, emergency hospitalization precludes choice of facility, and health insurers may stipulate location of inpatient care. Some patients choose academic hospitals with the expectation of more highly expert care. Patients may not be aware of all the implications of choosing an academic hospital, and physicians at nonacademic facilities also may practice to maintain skills. Simply expiring in a teaching hospital does not substitute for consent for any established postmortem activity and should not apply to practicing nonindicated procedures.
The degree to which patient consent is informed is inadequate in many circumstances. For example, we seriously doubt that patients who are a trainee's first subject for a procedure are informed of this fact. This information is material to meaningful informed consent. We suspect that full disclosure is generally not offered because the greater likelihood of consent refusal would thwart the important goal of physician training. One may argue that the absence of objections by physicians or the public to imperfect informed consent for treatment suggests that a lesser quality of consent is acceptable for practicing procedures on a dying patient, given the parallel concerns in consent refusal and the need to train physicians, and also because physical harm is inconsequential in this setting. However, acceptance of inadequate consent should not justify unconsented medical procedures. Rather, current informed consent practice ought to be viewed as a deficient baseline from which more meaningful disclosure and greater transparency of operations should be pursued.
As mentioned above, studies suggest a majority of the public may consent to training on their newly dead relatives. However, significant barriers to consent exist. Many laypersons support the use of advance directives for postmortem medical training, similar those used for organ donation.26,27
However, experiences with organ procurement suggest that, in fact, prior consent would have little effect on using these corpses for training.30
Discussions with family members for consent may cause additional emotional distress.24,28
Health professionals making the request may have greatly varied levels of comfort with this role.24,28
Specific training may be needed for physicians who make postmortem requests of families.31
Cultural concerns that may limit cadaveric organ donation, such as fear of angering or causing suffering for the spirit of the deceased, or reservations about mutilation of the corpse, may similarly limit consent for postmortem training.32–34
Should consent requirements be rejected? In consequentialist constructs, where some individual interests are subjugated to larger interests, the use of corpses for training purposes without explicit consent can be justified. Here, possible burdens to the deceased person or family are accepted for the societal good. The use of corpses minimizes harm to living patients who otherwise would bear the burden of being training subjects. In this system, practical concerns regarding harm to living persons override concerns about damage to corpses, or the harms from offending individuals' notions of death and dying. Our Western societal norms more closely reflect an individualistic ethic than a communitarian ethic.