Competence & Contracts

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An issue when faced with disputes about the meaning of words in a contract, courts may look outside the words to other evidence that speaks to the intent of the parties and whether there was truly a “meeting of the minds.”

In the context of health care and informed consent, there may be issues of adhesion contract (in which inequalities of power between the parties and the desperate nature of some medical circumstances render a contract inherently unfair).

When informed consent is part of a contract, the ability of a patient to understand and to participate voluntarily are critical to the validity of consent, and it is the duty of the person seeking consent to verify that adequate understanding exists and that there are not threats to voluntariness. In this sense, informed consent may contain fiduciary elements that are not present in ordinary commercial contracts. The protective duties of whomever seeks consent arguably makes an informed consent document subject to a different standard as compared, say, to the caveat emptor that might apply to a contract to buy an appliance or a car.

Problems with informed consent may result from patients’ limited literacy, from exigent circumstances under which consent is obtained, and/or from documents written at a post-graduate level and laced with unintelligible legal jargon.


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