Montgomery and the Information needed for Valid Informed Consent

In the light of Montgomery case  the Royal College of Surgeons  has warned the NHS that failure to fully implement informed consent rules opens the way to more litigation. In this case the court held that doctors must ensure patients are fully aware of any and all risks that an individual patient, not mainstream medical practice, might consider significant. This judgement appears contrary to the judgement given in the Bolam case which held the information necessary for consent to be considered valid was the information most doctors would consider necessary. In other words, the medical profession could act in a paternalistic manner with regard to the amount of information it provided.

I have some sympathy for the Montgomery decision because I believe that patients rather than their doctors should decide how much information they need to make informed consent decisions. Nonetheless I also believe there is now a clear danger of some patients being over informed making it hard for them make informed consent decisions. There is a difference between doctors simply acting paternalistically and acting paternalisticlly if asked to do so. In this posting I will argue it is possible to over inform some patients and that it is possible to give adequate consent on limited information.

 In making by argument I will use an example provided by Steve Clarke.

“Consider the case of ‘Squeamish John’. Squeamish John cannot bear to hear the details of medical procedures; hearing these make him feel weak at the knees and dramatically diminishes his capacity to make sensible decisions. Nevertheless he does not wish to abrogate responsibility for his decision about whether or not to undergo an operation. Squeamish John wishes to participate in a restricted informed consent process in order to make his decision. He wishes to make a decision based only on the disclosure of the risks and benefits of the operation couched in cold, impersonal, statistical language. He does not wish to have any significant details of the procedure described to him.” (1).

In addition, let us assume John is lying in hospital bed suffering from type2 diabetes and needing a leg amputation. Let us assume John gives consent in the restricted way outlined by Clarke and he regains consciousness minus one leg. Intuitively such a situation seems very wrong. Nonetheless I would argue it is possible for John to make an autonomous decision based on restricted information. John is making a decision to trust his doctor and it is possible to make an autonomous decision based solely on trusting the advice of another. If I trust the advice of my lawyer or financial advisor I am making an autonomous decision I can identify myself with. Are then doctors any less trustworthy than lawyers or financial advisors? It seems obvious to me that they are not. Does then the context in which informed consent takes place differ from other contexts such as the law and finance in respect of an agent’s ability to make autonomous decisions? Once again I would suggest it does not. It follows if squeamish John is permitted to make a decision in the way he prefers it would be an autonomous decision.

However, let us put questions of autonomy to one side. Let us assume John’s doctors follow the Royal College of Surgeons advice and do not allow him make his informed decision based on restricted information. Let us further assume John refuses to listen to or read most of the information they provide. In this situation it seems to me that John’s doctors have two available options. First, they might discharge him simply because he won’t listen knowing that his discharge will probably lead to death. In less life threatening cases than that of John this would be the probable outcome. It seems wrong to condemn summon to die because he simply won’t listen. Secondly they might decide his refusal to listen to all the details of his projected operation makes him incompetent to give consent. This decision would have to be validated by the courts. Let us assume this decision is validated and a decision on John’s treatment is made by a surrogate. This surrogate should make a decision based on John’s best interests, his best interests will be decided by his doctors. The outcome would be identical to that if it was accepted that John could make a valid informed consent decision based on trusting his doctors.

I accept my example is an extreme one but I believe it nonetheless raises some interesting questions. First, the Montgomery case seems to show that informed consent is not simply based on respect for autonomy. I have argued it is perfectly possible to make an autonomous decision based on trusting the advice of another person. Some patients at a very stressful time might want to make extremely complicated decisions and would prefer to make simple autonomous decisions. The Montgomery decision seems to deny them the possibility of making such decisions. The Montgomery judgement seems to require that much more information needs to be provided in order to make a valid informed consent decision as opposed to an autonomous decision. Secondly if doctors must ensure that patients are fully aware of any and all risks involved in their procedure, must doctors ensure they understand these risks including the probabilities involved or only have the capacity to understand. Must doctors ensure that their patients listen intently or fully read the information provided? Lastly even if doctors can be sure that patients understand the information should they also insist patients actually use it when making decisions? In conclusion I believe there are problems connected to the Montgomery case’s requirement that patients must aware of any and all risks involved their procedures. I also believe patients must have the possibility of becoming aware of any and all risks involved their procedures but that this awareness should be driven by patients’ needs. It seems this awareness is at moment being driven by fear of litigation rather than any genuine concern for patients’ real needs.

1. Steve Clarke, 2001, Informed Consent in Medicine in Comparison with Consent with Consent in Other Areas of Human Activity, The Southern Journal of Philosophy, 39, page 177

A Duty to permit Assisted Suicide?

In previous postings I have argued that we should accept that terminally ill people have a right to die and that we should respect that right by accepting assisted suicide. My arguments were based on respecting autonomy and of course respecting autonomy involves duties. However in this posting I want to focus more directly on duties. I will argue that we have a duty not to cause terminally ill people who are suffering to continue to existing against their will. We have a duty not to force innocent people endure pain in order to protect the vulnerable, surely the vulnerable can be protected in better ways.My argument will be based on the premise that we have a duty not to bring into existence any being which would find its life not worth living.


Let us accept the above premise without argument. I now want to suggest that the duty not to bring into existence any being we think would not find its life worth living is analogous to a proposed duty not to cause any being to continue to exist against its will if its life is not living. Accepting this analogy would have implications for using animals in medical research but in the following discussion I will limit my argument to assisted suicide. It might be objected that my suggested analogy fails for two reasons. First, it might we objected that by refusing to grant the right to assisted suicide to these people we do not cause them to lead lives which are not worth living. Secondly it might be objected even if some people do experience lives which are not worth living this would be better rectified by changing the conditions of these lives rather than by making assisted suicide available to such people. I will deal with each of these objections in turn.

Let us accept that that we have a duty not to bring into existence any being we think would find its life not worth living. We have a duty not to cause the existence of such lives. My objector might accept this premise. We shouldn’t enslave or torture people for instance. But he might argue that we don’t cause terminally ill patients or prisoners serving life sentences to lead lives not worth living and as a result my analogy fails. The cause of their misfortune is due to disease or past crimes. He might then proceed further by suggesting even if we are a partial cause of the type of lives some people live that a partial cause doesn’t give rise to a duty. Let accept that my objector does accept that he has duty not cause a child to come into existence who wouldn’t have a life worth living. Let us assume this child wouldn’t have a life worth living due to some genetic defect. It follows anyone who permits such a child come into existence is only a partial cause of the child not having a life worth living. It would appear my objector must accept either that our partial causation of some event can incur duties or that there is nothing wrong with causing a child to exist when he will not have a life worth living due to genetic defects. In the light of the above example my initial premise might be amended as follows. We have a duty not to be the partial cause of the existence of any being which wouldn’t have a life worth living. If someone accepts my amended premise, then it might be argued by analogy that we also have a duty not to be the partial cause of someone continuing to live a life he doesn’t find worth living.


At this point my objector might raise a second objection to my analogy. He might point out that in my amended premise we only have a binary option of causing or not causing existence. He might proceed to further point out that for both those suffering from terminal illnesses and prisoners serving life sentences other options are available. For terminally ill patients we could improve palliative care and for prisoners serving life sentences we might improve penal conditions. I accept my objectors point and accept that provided other options are available which would allow both of these categories of people to live lives they would find worth living my analogy fails. I also accept that improvements in palliative care and prison conditions are desirable and should be carried out. However, I do not accept that such improvements always means we are not the cause of making someone live a live he finds not worth living. Simply removing pain from a terminally patient’s life doesn’t mean he has a life worth living. We can remove all pain from someone by putting him in an induced coma for the rest of his life. Would such a patient really be alive? I would argue if someone is unconscious and will never regain consciousness he is in a state equivalent to being dead, he is certainly not living any sort of live at all. Whether it is possible to remove almost all the pain from all conscious terminally ill patients so that pain by itself doesn’t mean they don’t have lives worth living is an empirical question. Personally I doubt whether this will be possible in all cases but I will not pursue the point here. However, even if we could reduce pain to acceptable levels for all terminally ill patients it does not follow that they have lives which they believe are worth living. A life worth living is not just a question of having a relatively pain free conscious existence. Is simply existing really living? A very limited lifespan together with vastly impaired capabilities might well mean some such people find their lives lacking all meaning, find their lives not worth living. I would suggest anyone who suggests otherwise might be accused of epistemic arrogance. It follows even if palliative care was much improved there would still be some terminally ill patients living lives which they would find to be not worth living. It might also be argued much improved prison conditions don’t automatically mean prisoners serving life sentences always find their lives worth living. Some such prisoners might suffer from remorse which makes their lives not worth living. Indeed, better penal conditions might increase such prisoners’ propensity to suffer remorse. Other such prisoners might find the impossibility of freedom makes their lives meaningless, not worth living. It again follows that improved penal conditions would not mean all prisoners serving life sentences would have lives they considered to be worth living.

In the light of the above it appears, if we accept the premise that we have a duty not to bring into existence any being which would find its life not worth living that we also have a duty not to cause people to continue to exist if they have lives not worth living. It follows we should permit assisted suicide to those suffering from terminal illness. Accepting the above might also mean some patients with a terminal diagnosis who find their lives worth living might better enjoy their lives if they had the reassurance that if these lives became unbearable they could be helped to end them removing their worries about how these lives might end.