Informed Consent as a Fundamental Right: Immunity or Self-determination?

The Spanish Constitutional Court (STC 37/2011, 28th March, among others) has established the right to physical and moral integrity as constitutional foundation for informed consent (article 15 CE). Informed consent has been shaped by the Spanish Constitutional Court as an inhibition duty for physicians, that is to say, the denial of physician’s power in Hohfeld’s wording. Since informed consent is defined as a negative or defense right, understanding it as a legal freedom or a right to self-determination would require a review of its constitutional foundations. This paper aims just to revise the legal basis of informed consent by means of W.N. Hohfeld’s and Robert Alexy’s works.