Valid Consent, Good Consent and Asymmetric Competence

In this posting I want to consider the topic of informed consent. Eric Chwang is interested in the difference between the standard needed for consent to be considered valid for normal clinical patients and the standard necessary for valid consent from research subjects (1). In this posting my sole concern is with normal patients. Chwang takes as his starting point the judgement in Canterbury v Spence, see Canterbury v Spence . This Judgement has two main strands. First the information a doctor must give a patient should be determined by the patient’s needs. The second condition places a restriction on these needs. Chwang calls the second condition the pragmatic criterion and expresses it as follows,

 “in order for consent to be valid, whether some piece of information needs to be disclosed depends on whether it might affect the patient’s (subject’s) decision whether to consent.” (2

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The pragmatic condition seems to reflect the judgement in the Montgomery case . In this case the court held that doctors must ensure patients are fully aware of any and all risks that an individual patient, not just the risks mainstream medical practice, might consider significant. It is the consequences of accepting the information requirements of this judgement I want to explore in this posting.

The pragmatic criterion gives us some guidance as to how much information a patient should be supplied with in order to make a competent decision. Unfortunately, this guidance seems to be at odds with the idea of informed consent being based on respect for patient autonomy. Suppose a patient simply understands he is likely to die without treatment and makes a decision on solely this basis, if any additional information will not alter his decision then according to the pragmatic criterion it is unnecessary to disclose any additional information. Chwang writes,

“Suppose that the only way to save my life is by amputation. To get consent for ‘life saving treatment’, but without also mentioning that the treatment in question is amputation, would be grossly inappropriate” (3).

The question I will now discuss is what is inappropriate about obtaining consent in this way? In order to help in this discussion 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.” (4).

Let us assume John gives consent in manner outlined by Clarke and he wakes minus one leg. Chwang would find this situation grossly inappropriate and according to the Montgomery judgement John’s would have given inadequate consent. I now want to consider is inappropriate or inadequate about such a decision. I will now argue what is inappropriate or inadequate about such a decision is not that it is an non autonomous one. Let it be accepted an autonomous decision is simply a decision with which the agent identifies himself and ‘cares about’; in this context I am using ‘cares about’ in the same way as it is used by Harry Frankfurt (5). If autonomy is defined in such a manner John’s decision appears to be autonomous. However, some objector might argue for any decision to be autonomous it must be made using practical reason. Even if this objection is accepted it might be argued that practical reason is closely tied to an agent’s identity and what he cares about. David Velleman for instance believes practical reason is defined by the self-understanding someone gains by playing himself (6). This understanding depends on him doing what makes sense or seems appropriate to him; he must identify with and care about such actions. However, my objector might respond further by arguing this isn’t normally how we use the term practical reason. She might argue that anyone using practical reason to make a decision should objectively weigh up all of her available options connected to this decision. Any decision made this way would satisfy the Montgomery judgement.

For the sake of argument let us assume that assume practical reason does involve some objective weighing up of all the relevant costs and benefits and that for a decision to be autonomous it must utilise practical reason as so defined. However, if we accept the above it follows that squeamish John’s cannot make an autonomous decision. In this situation John’s squeamishness means his preferred way of making his consent decision is the only possible way he can make a decision. In everyday life outside a medical context all of us sometimes delegate important decisions to experts of our choice, such as lawyers or financial advisors, without others questioning our autonomy. 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? 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. It further follows what Chwang finds inappropriate, or the Montgomery judgement finds inadequate, about such a decision is not that it is a non-autonomous one.

I have argued squeamish John’s proposed decision would be an autonomous one. I would suggest what Chwang finds grossly inappropriate or the Montgomery judgement inadequate about such a decision is either that it is not a good decision or a good way to make such a decision. I would argue we should not equate autonomous decisions with good decisions. Autonomous decisions are simply autonomous decision and not autonomous decisions plus another requirement. Autonomous decisions as defined above need not of necessity good decisions. None the less autonomous decisions cannot simply be made at random, by the throw of a dice for instance. Autonomous decisions must be made on the basis of some information. If it is accepted that autonomous decisions need not of necessity be good decisions then the amount of information necessary to make an autonomous decision may not always be identical with the amount of information needed to make a good decision. The above raises the question about how much information is needed to make an autonomous decision?

In order to answer the above question, we must first be clear about an agent’s purpose when making an autonomous decision. I have suggested above an autonomous decision is one which the agent ‘cares about’ and with he identifies with. This type of decision is one the agent is wholehearted about. Frankfurt argues a wholehearted decision is one with which the agent is satisfied with. He further argues satisfaction involves an absence of restlessness and any desire for change (7). It is of course true that many agents would not be satisfied with any decision they regarded as sub optimal. However, it would appear a decision need not be an optimal decision for it to be an autonomous one according to Frankfurt. All that is necessary for a decision to be autonomous is that the agent is satisfied with his decision. I accept such a position. My objector might again point out such decisions need not be rational ones and that any decision lacking rationality should not be regarded as a fully autonomous one. In reply I would question exactly what is meant by rational. I will assume in the context of giving consent rationality refers to practical rationality. If this is so I would once reiterate that some philosophers such as Velleman would regard decisions with which the agent is satisfied with as defined above or finds appropriate as practically rational. In addition, I would argue such decisions are examples of satisficing or bounded rationality. The term satisficing was introduced by Herbert Simon in 1956. Satisficing does not require an agent maximise his good. Satisficing only requires that an agent brings about an outcome that he considers good enough by some standard. My objector might now point an autonomous agent needs only to be satisfied with his decision and does not set some standard by which any option must be judged. She might then argue any such decisions are not examples of bounded rationality. In reply I would suggest satisfaction as defined above must at the very least involve some unconscious bounds and that autonomous decisions implicitly involve bounded rationality. It follows the amount of information needed for an agent to make an autonomous decision is the amount of information that would satisfy agent.

I have used the example of squeamish John to show in certain contexts, provided the only way to save someone’s life is by amputation and consent is obtained without mentioning this fact, that none the less the patient’s consent might be autonomous. Chwang believes such consent would be grossly inappropriate. Chwang’s belief seems to be based on the idea that the patient has been inadequately informed. I believe Chwang is correct in most contexts but not all. Good quality consent should be an aim of the informed consent process, see GMC guidance for consent . However, the taking of consent like medical interventions does not always occur under ideal conditions and in some contexts good quality consent may be impossible. The General Medical Council’s guidelines on consent of 1998 specifically stated that the purpose of consent was to respect patient autonomy. The current guidelines mentioned above do not explicitly base informed consent on respect for autonomy but none the less implicitly require this respect. If respect for autonomy is the sole principle on which informed consent is based then we must simply respect all autonomous decisions. My objector might point the purpose of medicine is to act beneficently towards patients. She might then use this fact to argue basing informed consent solely on respect for autonomy is simplistic. She might then suggest the purpose of informed consent should be to respect patient autonomy and enable them to make good decisions. I accept the above is the ideal which informed consent should aim for. However, in some contexts acting beneficently might clash with respecting patient autonomy. Such a clash must be resolved. I have previously suggested we cannot act truly beneficently if we fail to respect autonomy. We must give priority to respecting autonomy over acting beneficently when these values clash, see Autonomy and acting Beneficently. Accepting the above means we must in some situations accept less than ideal decisions provided these decisions are autonomous and that Chwang is mistaken to regard such decisions as inappropriate in these situations.

Lastly I want to consider whether a consequence of accepting the pragmatic criterion is accepting the concept of asymmetric competence. This concept is defined by Wilks as follows.

“If we consider a safe, routine treatment for an acute and dangerous condition (as with an appendectomy for appendicitis), it is clear that the risk in accepting the treatment is small, the benefit great, while the risk in refusing it is great and the benefit in most cases non existent. This means that one confronted with this choice would require a higher level of competence to say no than to say yes, with, indeed, a very pronounced difference between the levels” (8)

Intuitively the pragmatic criterion supports Wilks’ position. In the situation such as that envisioned by Wilks above if a patient consents a great deal of information is unlikely to alter his decision. However, were he to refuse to consent some additional information might well alter his decision. Before considering the question of asymmetric competence I will examine two related concepts. I will examine the asymmetric triggering of competence assessments and the asymmetry in information needed to give competent consent and to give a competent refusal. I will firstly argue that for pragmatic reasons there should be asymmetric triggering of competence assessments. Indeed, it seems unlikely any patient’s competence will be questioned provided his consent is sought and he consents. I would support this failure to assess competence only in situations in which there is universal agreement among health professionals that some particular treatment is in a patient’s best interests. I have argued the most important purpose of patient consent is to protect patient autonomy. The reason why competence is sometimes assessed is to ensure non-autonomous patients receive beneficent care. In the light of the above assessing a patient’s competence if he consents seems unnecessary. Provided the patient is competent his autonomous decision should be respected. However, if he was assessed as incompetent and a surrogate decision maker made a decision on his behalf then any treatment would identical with the treatment he had previously consented to. It follows no useful purpose is served by assessing a patient’s competence provided he consents to some treatment when the health benefits are clear and the risks of non-treatment great.

I will now argue there is an asymmetry in the information needed for a patient to make a competent decision when he consents and when he refuses to consent. Let it be accepted as I have argued above any autonomous decision must count as a competent decision. Let us consider squeamish John once again. John consents to treatment and is satisfied with his decision. It might be suggested the reason why John is satisfied is that he finds the decision is appropriate to him because he can justify it to himself. John can justify his decision by trusting his doctors to do what is in his best interests. The minimal amount of information John receives also satisfies the pragmatic criterion as any additional information will not alter his autonomous decision. It follows as I have argued above John can make a competent decision, even if less than an ideal one, based on the minimal information provided. Now let us consider a situation in which a patient refuses to consent and insists on only being supplied with the same minimal information available to John. In this situation, provided the patient’s condition is non-life threatening, the procedure would simply be cancelled and the patient’s competence would remain unquestioned. For example a patient who refuses to consent to a hip replacement. However, let us assume the patient’s condition is life threatening. In this situation I would argue such a patient cannot make an autonomous decision and hence is not competent to give consent. There might be one exception to the above. A suicidal patient may well have enough information to make an autonomous decision. Needless to say medicine is not in the business of helping patients commit suicide with the possible exception of those who are terminally ill. The reason why such a patient cannot make an autonomous decision is he does not have enough information to make a decision with which he can be satisfied; a decision that he can justify to himself. In addition any additional information may well alter the patient’s decision meaning the information provided in this situation does not satisfy the pragmatic criterion. It follows if we accept either that a competent decision must be autonomous one or one requiring that a competent patient has enough information to satisfy the pragmatic criterion that a patient in this situation cannot make a competent decision. It further follows there is sometimes an asymmetry in the information a patient needs to make a competent decision if he consents and the information he needs if he refuses to consent.

Let it be accepted asymmetry between the information a patient needs when he consents and refuses consent. It is then possible for a patient to be asymmetrically competent. If a patient can understand the information needed to consent but fails to understand the additional information needed to refuse consent then he is asymmetrically competent. In practice I believe this situation is unlikely to occur as it seems to me most patients will be capable of understanding the additional information.

1. Eric Chwang, 2010, A Puzzle about Consent, Journal of Applied Philosophy, 27(3).
2. Chwang, page 262.
3. Chwang, page 265.
4. 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
5. Harry Frankfurt, 1999, Necessity, Volition, and Love, Cambridge University Press
6. David Vellman, 2009, How We Get Along, Cambridge University Press, page 18.
7. Frankfurt, 1999, page 103.
8. Wilks, 1997, The debate over Risk-related Standards of competence, Bioethics 11(5), page 417., 2010, A Puzzle about Consent, Journal of Applied Philosophy, 27(3)..