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.

Happiness and Consumerism

It is commonly asserted that people aren’t as happy as they used to be years ago due to the consumerist culture we live in. Usually very little evidence is produced to support this assertion. In this posting I will attempt to remedy this situation by providing an argument to support the above assertion. I will argue that our culture limits our ideas about what makes us happy and that this limitation limits the amount of happiness we experience. Previously I have argued that the way in which we are happy changes as we age and mature and I will use this argument as a starting point to support the current argument. My argument rests on two important premises both of which I will support by argument. Firstly, I will argue that our actual level of happiness depends on, at least to some degree, our ideas about what will make us happy. Secondly, I will argue that our culture helps define those ideas. I will conclude that we should try to broaden the focus of our culture particularly with regard to the way we work and the way we are educated.

Before proceeding with my argument I want to introduce two differing ideas, concepts, of happiness. Firstly, there are hedonistic concepts of happiness such as that outlined by Fred Feldman. Feldman believes someone is happy now “if when we consider all the propositions with which she is currently intrinsically attitudinally (dis)pleased with and we then consider the degree to which she is (dis)pleased with these propositions and find the sum to be positive” (1). This is a definition of momentary happiness but in this posting my concern will be with happy persons rather than momentary happiness. Feldman believes a happy person is simply one who over time is pleased to a greater degree than she is displeased. A different concept is that of Daniel Haybron. According to Haybron,

“To be happy then, is for one’s emotional condition to be broadly positive – involving stances of attunement, engagement and endorsement – with negative central affective states and mood propensities only to a minor extent.” (2)

 There is some overlap between these concepts but Haybron argues that happiness,

“has two components: a person’s central affective states and second, her mood propensity …. What brings these states together, I would suggest is their dispositionality.” (3)

I have previously argued that a disposition to be happy is an essential element of being a happy person and will briefly repeat my argument here, see Feldman, Haybron and happy-dispositions . There is a difference between a happy person and a person who is happy. It seems to me that Feldman and hedonists are interested in people who are happy rather than happy persons. A person who is happy is simply a person who is currently happy. The fact that a person is currently happy by itself gives me little reason to assume she will be happy tomorrow. I may of course believe she will be happy tomorrow because I know that tomorrow will be her birthday, but the fact she is happy currently, by itself, gives me little reason to predict her future happiness. However, if I believe someone to possess a happy disposition then I normally expect her to be happy tomorrow. For this reason, I believe Haybron better defines what it is to be a happy person and will use his definition unless stated otherwise.

If we accept Haybron’s definition, then it seems to me that the relative importance of the various elements within his definition change as we age, see does our concept of happiness change as we age . I will briefly outline my argument. Let us recall that that someone is happy if her emotional condition is broadly positive and that this involves her in general being attuned to, engaged with and endorsing her emotional condition. Haybron ranks the importance of attunement, engagement and endorsement in that order in relation to happiness. Haybron connects endorsement to feelings of joy or sadness (4). I suggested endorsement involves being satisfied with rather than any large scale feelings of joy or sadness. I did however suggest being satisfied with does involve some minimal positive emotion, slight joy? If the above is accepted, then being satisfied is an essential element of being happy. A further argument can be advanced as to why being satisfied is an essential element of happiness. Martin Seligman believes achievement is an essential element of happiness (5). It seems to me that achievement usually linked to being satisfied. If we accept that Seligman is correct and achievement is an important element of being happy then it follows so is being satisfied. Lastly I argued if we accept that satisfaction is an essential element of being happy then the way we are happy changes as we age because younger people give greater weight to hedonistic pleasures whilst older people give greater because to being satisfied. It would appear the way in which we are happy changes as we age.

Let us accept that the way in which we are happy changes as we age. I now want to argue that our ideas about what will make us happy affects the level of happiness we actually experience. Some might question if an idea about what will make us happy is needed if we are to be happy. They might suggest people are just happy or unhappy and don’t need any ideas about what will make them happy. To support this suggestion, they might point out animals and infants can be happy without any idea of what will make them happy. They might proceed to argue that apart from philosophers most people are simply happy or unhappy. However unlike animals or infants we aren’t simply happy, we actively pursue happiness. A pursuit is impossible without some goal. The pursuit of happiness implies that we must have some ideas about what will make us happy. Let us accept that people must have some ideas about the things which will make them happy however vague. However even if we accept the above it doesn’t automatically mean our ideas about the things will make us happy are related to the level of happiness we experience. We might be mistaken about what will make us happy. It might be suggested that such mistakes are of little importance because we naturally pursue the things that make us happy. I would reject such a suggestion. Let us accept that there can be a mismatch between the things we think will make us happy and the things that actually make us happy. Having mistaken ideas of what will make us happy can damage our actual happiness. We can pursue things that don’t really make us happy at the expense of not pursuing thigs that actually make us happy. Examples are easy to find. For instance, someone who desires meaning in his life but pursues hedonistic lifestyle because he believes living such a life will make him happy. Or perhaps someone who pursues a stoic way of life and rejects the demands of love. It follows that our ideas of what will make us happy can affect the actual level of happiness we experience.

I now want to argue that the culture someone lives in affects her idea of what will make her happy. Clearly someone’s culture affects the things that make her happy. For instance, some cultures value wealth whilst others value honour more than wealth. It might be argued that this difference is only a difference in what makes us happy but not in the way we are actually happy. For instance, someone might be a gourmet and value good food whilst someone else might be a libertine who values having sexual intercourse as often as possible. Two different sort of things make these people happy but both of these people have the same underlying idea about the way they will be happy. It might be concluded that our basic idea about the way we will be happy doesn’t change even if its focus does. I now want to argue such a conclusion would be mistaken because in certain cases the things we value helps determine the way we enjoy them. Let us consider someone who values honour. Haybron hints that if someone is happy there is a link between her happiness and the self. (7) I believe Haybron is correct and that there is indeed a connection between some forms of happiness and the self. Clearly this is not the case with hedonistic happiness. To enjoy a good meal or sexual intercourse no one needs a sense of self. This is not true of someone who values honour ‘cares about’ or loves her honour. Valuing honour is connected to her identity, her sense of self, see some of my previous postings. I would suggest such a person will be happy when she acts honourably and that her happiness depends on her satisfaction with acting as she believed she should. I would further suggest her satisfaction is linked to her sense of self by her cognition. The way she is happy is very different to the way someone is happy when enjoying a good meal or having sexual intercourse. Let us accept that people can be happy in different ways and that the pursuit of different ways of being happy requires different ideas about happiness. Let us also accept what we value determines the way we enjoy it, the way in which we are happy. Different cultures value different things. Some of the things we value are determined by the culture we live in. It follows culture helps to determine the way in which we are happy.

No culture is completely homogenous and our culture certainly isn’t. However, I now want to argue that a certain dominant idea within our current culture fosters ideas about what will make us happy which damage our actual happiness. In the western world our culture is dominated by the idea of the consumer. Advertising suggests we will be happier if we have the latest car, have a large modern house, have shinier hair, have brighter teeth, etc. Advertising suggests we will we happier if we have certain things, if we are consumers. Western culture sees us as consumers just as much as it sees us as citizens. The idea of a consumerism is widespread even extending into education. In school pupils are encouraged to learn in order to get good jobs rather than enjoy learning. In education more generally courses are becoming increasingly designed with employment in mind rather broadening students’ horizons. Education is in Yeats words becoming a matter of filling pails rather than lighting fires. I argued above culture helps determine the way we are happy. A culture with a dominant consumerist ethos supports a hedonistic ideas of happiness such as that of Feldman. I further argued that an account such as that of Feldman offers an incomplete concept of happiness because it offers an inadequate account of what it means to be a happy person. Lastly I argued that our ideas about what will make us happy affect the actual happiness we experience. It follows that someone holding an incomplete idea of what will make her happy might experience less actual happiness than if she had a more complete idea.

I now want to discuss four ways in which our overly consumerist culture damages our happiness by fostering an incomplete idea of happiness. First, I have argued above our consumerist culture fosters a hedonistic ideas of happiness. I argued above that such an account of happiness is an incomplete account. Let us recall that that according to Haybron someone is happy if his emotional state is positive and he is attuned, engaged and endorses that state to some degree. I have suggested endorsement is linked to satisfaction. Someone might be satisfied if she is eating a chocolate cake, with some state of affairs or past achievements. Being satisfied with eating a chocolate cake does not involve any cognitive abilities. However, if someone is satisfied with some state of affairs or past achievements she engages some of her cognitive abilities. A hedonistic account of happiness does not directly involve our cognitive abilities. It follows if culture fosters a hedonistic idea of happiness that this fostering might limit some peoples’ ideas about happiness by diminishing their desire to pursue some of the things which might add to their happiness, by limiting their desire to pursue things that satisfy them. Secondly I have argued that as people age the weights attached to the various elements which contribute to their happiness change. A culture which fosters a mostly hedonistic idea of happiness damages that change and as a result damages the happiness they experience. I have outlined this argument above and will not repeat it here. Again it follows that an overly consumerist society might limit our overall happiness especially for older people. Thirdly would argue that our consumerist culture encourages an attitude to work which limits the happiness we experience. Let us accept that some work can give our life meaning and that this meaning increases our happiness. There are two different definitions of work. Firstly, we might define work simply as labour undertaken for some economic reward or hope of such a reward, let us define this as working for something. Such work is instrumental and has no intrinsic value. Secondly someone might work at something. For instance, she might work at playing some musical instrument simply because she enjoys it. Someone playing a musical instrument might become fully immersed with her music losing any feeling of reflective self-consciousness.  According to Mihaly Czikszentmihalyi when someone is in such a flow state she experiences positive emotions. These emotions contribute to his happiness. Our consumerist culture encourages working for something at the expense of working at something and by so doing limits our ability to experience our ability to experience the positive emotions generated by flow. It again follows that an overly consumerist society damages our overall happiness. Lastly our consumerist culture emphasizes consuming things makes us happy. I don’t deny consumption might make us happy for a while. A consumerist culture places emphasis on momentary happiness. It seeks to make people happy, which in itself is laudable, but it is much less concerned with happy people and this lack of concern also limits our happiness. At this point I must it clear that when I speak about happy people I am concerned with people who have a disposition to be happy rather than people who are simply experiencing positive emotions. Our consumerist culture limits happiness because momentary happiness is fragile happiness whilst the happiness experienced by happy people is more robust than momentary happiness. It again follows that an overly consumerist society damages our overall happiness.

What conclusions can be drawn from the above? First our consumerist society damages our happiness and we should seek to broaden the focus of society. Our attempts to broaden the focus of society should concentrate on work and education. This expanded focus might be particularly important if automation leads to people working less. If work provides some meaning in life then it is important to change society’s focus from ‘working for’ to ‘working at’, see work, automation and happiness . An overly consumerist society might find such a change difficult. Secondly if it is hard to broaden society’s focus it becomes especially important to have an accurate idea of what makes us happy, our concept of happiness matters.

1. Fred Feldman, 2010, What is this thing called Happiness? Oxford, page 29.
2. Daniel Haybron, 2008, The Pursuit of Unhappiness, Oxford, page 147.
3. Haybron, page 138.
4. Haybron, page 113
5. Martin Seligman, 2011, Flourish, Nicholas Brealey Publishing, Chapter 1.
6. Haybron, page 130.

Sport, Motivational Enhancement and Authenticity

 

Heather Dyke writing in the conversation examines why doping in sport is wrong. In a previous posting I have argued that doping in sport is wrong for three main reasons, see sport performance and enhancing drugs . Firstly, I believe there should be a difference between sport and simple spectacle and that the use performance enhancing drugs by sportspersons erodes this difference. Secondly I argued that permitting performance enhancing drugs simply moves the goalposts. If we don’t permit the use of all drugs, including dangerous ones, we will still have to test whether any drugs used are permitted ones. Lastly I argued what we admire about sport is linked to the determination and effort required by sportspersons and that the use of performance enhancing drugs weakens this link. Determination and effort are linked to motivation, to character. I have previously argued that it would not be wrong to enhance our motivation, see effectiveness enhancement . It would appear that I hold two conflicting positions with regard to doping in sport. In this posting I want to examine this conflict.

Let me start my examination by making it clear the sort of doping I am opposed to. I believe any drug which enhances an athlete’s body damages sport for the three reasons outlined above. If some mediocre athlete could transform himself into an Olympic champion in a matter of weeks by taking some drug which vastly physically enhanced him would we really admire him? I would suggest we would not because we feel sporting excellence should require some effort. Now let us consider a second mediocre athlete who transforms himself into an Olympic champion over by taking some drug which enhances his motivation over a number of years. By transforming his motivation, he trains more determinedly and makes greater effort when training. This second athlete raises three interesting questions. Firstly, is there any real difference in a sporting context between an athlete taking a drug to enhance himself physically and enhance himself mentally? Secondly would we admire such an athlete? Lastly is the enhancement of someone’s motivation compatible with the ethos of sport?

I will now attempt to answer each of the above a questions in turn. Is there any real difference in a sporting context between an athlete taking a drug to enhance himself physically and enhance himself mentally? Clearly there is a difference in this case because an athlete who enhances himself physically with the use of drugs need make no effort to achieve his enhancement whilst a second athlete who physically enhances herself by mentally enhancing her motivation must still train hard. Does this difference matter? The answer this additional question is connected to our second original question. What do we admire about sportspeople? I would suggest we admire their dedication to the effort required for their sport, we admire their motivation for sport, we admire part of their character. Of course it follows we need not admire all of a sportsperson’s character. Let us accept that we admire a sportsperson’s motivation, effort and dedication. The question now would admire his motivation, effort and dedication if these were artificially enhanced?

It might be argued that if we obtain certain goods easily without any real determination that in so doing we devalue determination in general. Let us assume it is possible to artificially enhance our motivation by making us more determined. Let us accept that if an athlete enhances himself physically by the use of drugs, gene therapy or blood doping that he devalues the importance of motivation. Does the same apply if he enhances his motivation artificially? I would suggest it does not. There is an important difference between the enhancement of effectiveness and the enhancement of motivation. Enhancing our effectiveness devalues our motivation whilst it is hard to see how enhancing our motivation could possibly devalue motivation. Accepting the above means it might be possible to admire an athlete who artificially enhances his motivation whilst at the same time failing to admire an athlete who simply enhances himself physically.

At this point someone might object that whilst accepting someone who enhances his motivation does not devalue his motivation that nonetheless he devalues himself as a person. He does so by making himself less authentic. My objector might then argue someone shouldn’t enhance his motivation because being authentic is something we value. In response I would point out the things which make us authentic aren’t fixed from birth, babies aren’t authentic. People seek to change themselves by enhancing themselves by training or learning. I can see of no reason why people changing themselves by these means will render themselves inauthentic. I would suggest someone’s authenticity depends on him seeking goals he identifies with rather than the means he chooses to seek these goals. Someone’s authenticity is determined by what he loves or cares about. I would further suggest that a truly authentic person must always choose those means which are most effective in promoting the goals he identifies herself with. It follows if these means include enhancing his motivation that this enhancement isn’t inauthentic. Indeed, it appears that if someone doesn’t use the most effective means to promote those goals he identifies with that his authenticity is weakened. Sometimes those most effective means might include motivational enhancement and it follows someone does not use motivational enhancement that his authenticity is weakened

What conclusions can be drawn from the above. Firstly, physical enhancement by artificial means devalues sport.  Secondly motivational enhancement by artificial means does not seem to conflict with the ethos of sport provided it is accepted this ethos is connected to the sportsperson’s character. I accept some people might be reluctant to accept this second conclusion and might believe I am wrong to separate so completely the goals someone identifies with and the means he uses to achieves his goals.