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.
- 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
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