Canterbury v. Spence established the legal standard of informed consent as an “objective” duty to disclose, otherwise known as the reasonable patient test [1]. In Canterbury v. Spence, Jerry Canterbury sued his physician for negligence after complications ensued, alleging that he was not properly informed of the risks involved with an elective laminectomy performed for back pain [1]. The content of the disclosure of the risks of a procedure to the patient has been approached in terms of subjective, community, and reasonable person standards. “Subjective” standards require the disclosure of what a specific patient would need to know pertinent to the patient’s particular circumstances; “community practice” standards require disclosure of information that other local practitioners in a local community deem appropriate for disclosure; and “reasonable person” standards require the disclosure of what a reasonable patient would want to know under the given circumstances. In Canterbury v. Spence, the court ultimately stated that “full” disclosure was a norm that was prohibitive and unrealistic to demand from physicians, so it was favored to require disclosure of risk as “material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy” [1]. Current legal precedent thus requires the disclosure of information that would be relevant to the ability of a patient to make a decision under given circumstances. This information includes discussion of the risks and benefits, potential alternatives, and expected postoperative course relevant to a procedure or disease process in order for it to be a truly informed decision. Unfortunately, the “objective” legal standard focusing on information that a reasonable person would want to know can still be considered ambiguous and subjective as the content can vary widely among different patients.

Once the physician discloses information to the patient, it is essential to confirm that the patient understands this information and the risks, benefits, and alternatives of the procedure. In The Nichomachean Ethics, Aristotle discusses nous (comprehension) as not based only on the acquisition of episteme (knowledge), techne (craft), or phronesis (practical wisdom), but as exercising an opinion in order to render a decision or judgment [2, 3]. Using the framework of Aristotlean virtue ethics, informed consent requires the provision of sufficient information and the confirmation of the patient’s understanding of the provided information that will allow for judgment at a personal level [4]. The process of disclosure of relevant information can be extensive, as this discourse may not only be procedure-specific and disease-specific, but also patient-specific. However, the patient’s understanding of this information is critical to the informed consent process.

In the discussion between Ms. B. and her bariatric surgeon, the surgeon asks if the patient has any questions and thus begins to explore the patient’s level of comprehension and what additional information is relevant for her as a person. While the informed consent process for bariatric surgery may take over a year and may be assisted and supplemented by support groups and teams to ensure that adequate disclosure and understanding has taken place, it can be argued that the majority of surgical procedures and anesthetics cannot be practically undertaken with such liberty to educate the patient.

Despite physicians presenting information to patients in the obtaining of informed consent, the patients’ recall and understanding of this information can be limited. In a study of patients undergoing an open inguinal hernia repair, patient understanding and recall were poor only 4–5 days after informed consent was obtained [5]. In fact, only two-thirds of patients understood that they would have mesh in their groin, and less than 3% of patients were aware of the potential to develop chronic pain [5]. Furthermore, a study of patients with rectal cancer on a multidisciplinary clinical pathway including neoadjuvant therapy followed by a surgical procedure with multiple preoperative visits by the surgical team showed that patients still retained very little of informed consent discussions, and most still did not perceive these decisions surrounding surgery as being reflective of a true choice [6]. However, even with elective surgery, up to 13% of patients did not know the major risks of the procedure or even the procedure being performed (major deficits), and another 33% of patients did not have their values, preferences, or goals assessed [7].

Moreover, it is challenging to know when a patient truly does understand all of the relevant information, even if a patient verbalizes understanding. A recent study showed that while two-thirds of patients felt that they were extremely to moderately well-informed about their procedure, there was no relationship between perceptions of being informed and actual knowledge scores [8]. While these findings may lead to the conclusion that we are doing a poor job of informing our patients, these findings also highlight challenges in the process of the disclosure of information to patients. Interestingly, while surgeons and anesthesiologists are considered important sources of information for the consent process, the majority of patients seeking elective surgery may have already decided on whether they want the procedure done prior to even meeting their surgeon [9].

Informing the patient can be the more challenging of the components of informing the patient and obtaining consent. Informing the patient can be divided into three requirements to be met during the informed consent process: (1) physician disclosure, (2) assessing patient understanding, and (3) shared decision making [14]. In clinical practice, these stages are less distinct, and can happen over time and over multiple patient encounters, but we will examine each of them individually.