47
importance in the sphere of health, as a rule that establishes an adequate balance between the
beneficial medical action and the power of decision that the patient, as an autonomous moral subject,
retains in order to avoid actions of a paternalistic nature in which patients are instrumentalized to
avoid harm to their health.
161. The Court notes that, in the practice of medicine, recognition of informed consent as an
expression of the autonomy of the individual in the sphere of health has signified a paradigm shift in
the physician-patient relationship, because the model of informed and free decision-making has
evolved to focus on a participatory process with the patient, rather than the former paternalistic
model where the physician, as the expert in the matter, was the one who decided what was best for
the person who needed a particular treatment. From this perspective, patients are empowered and
collaborate with the physician as the main actor in the decisions that must be taken with regard to
their bodies and health, rather than the passive subjects of this relationship. The patient is free to
choose alternatives that physicians may consider contrary to their advice, and this is the most evident
expression of respect for autonomy in the sphere of medicine. This paradigm shift is reflected in
various international instruments which refer to the right of the patient to freely accede to a beneficial
medical act or allow it to be performed, without any type of violence, coercion or discrimination, after
having received appropriate and timely information prior to taking the decision.
162. Based on the foregoing, the Court considers that informed consent with regard to the
pertinence of a medical intervention with permanent consequences on the reproductive apparatus,
such as tubal ligation, belongs to the sphere of the autonomy and private life of a woman who can
freely choose the life project that she considers most appropriate; in particular, whether or not she
desires to retain her reproductive ability, the number of children she wishes to have, and the spacing
between them
163. The Court considers that the obligation to obtain informed consent signifies establishing limits
to medical intervention and guaranteeing that those limits are adequate and effective in the practice,
so that neither the State, nor third parties, especially the medical community, may arbitrarily
interfere in the sphere of personal integrity or privacy of the individual, especially as regards access
to health services and, in the case of women, family planning and other services related to sexual
and reproductive health. Similarly, the rule of informed consent relates to the right of access to
information on health matters, because patients can only give their informed consent if they have
received and understood sufficient information that allows them to take a considered decision.
Consequently, in the area of health, the Court reiterates the instrumental nature of the right of access
to information, because it is an essential means to obtain informed consent and, thus, to realize the
right to autonomy and liberty as regards reproductive health.
164. From the point of view of international law, informed consent is an obligation that has been
established when developing the human rights of patients. It is both a legal and an ethical obligation
of health personnel, who must consider it an element of medical expertise and good practice (lex
artis) in order to ensure accessible and acceptable health services.193 The Court will now establish
the elements of informed consent in force at the time of the facts of this case.
B.2
Consent in international law, comparative law and jurisprudence
In this regard, el Committee on Economic, Social and Cultural Rights has indicated that the right to health in all its
forms and at all levels contains the following interrelated and essential elements: availability, accessibility, acceptability and
quality. The guarantee of accessibility involves non-discrimination, physical accessibility, economic accessibility (affordability),
and information accessibility. Meanwhile, acceptability means that it is respectful of medical ethics and culturally appropriate.
Cf. UN, Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable
standard of health, August 11, 2000, para. 12.
193