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Consent and Consensus

15 May, 10 | by Iain Brassington

For the past week, the news in the UK has been all about coalitions, compromise, consensus and that sort of thing.  The hung Parliament has been heralded as ushering in a new era of politics-by-agreement, rather than by the traditional Westminster model of simply flattening everyone else.  And a lot of people seem to think that such a change in tone is a good thing.

But it’s not just in politics that consensus has its supporters.  You occasionally see it popping up in medical contexts – specifically, when it comes to questions of consent.

A couple of papers that I’ve read recently that grapple with everyday dilemmas in clinical practice have recommended negotiation, compromise and consensus as means of easing dispute.  In his recent Autonomy, Informed Consent and Medical Law, Alasdair Maclean makes a bid for seeing consent as something reached by agreement between HCP and patient: he recommends that both parties should try to decide on a course of action that is mutually acceptable. (Incidentally, you can see my full review of the book in the MLR.)  And, not so long ago, I was speaking with some medics who were talking favourably about strategies of negotiation and compromise as a way of settling disputes between what the patient wants and what the HCP wants or is prepared to give.

For example, one of the conversations, a medic was describing a situation in which information had come to light that the patient did not want sharing with her family, but which the medic thought it important to share for all kinds of reasons.  This particular medic’s response to that situation had been to try either to get the patient to disclose that information herself, or to get her approval for the release of limited information on her behalf.  The point is that the medic had attempted to get the patient to see the world from another perspective, in the hope that this might alter her preferences about what to do.

I can see why people might be attracted to this idea of mutual decisionmaking.  But I’m very suspicious of it.  This is for what I think is a couple of reasons – although they’re so closely related that they might be versions of the same reason.

One consideration is that the insistence on negotiation shifts the balance of power from the patient back to the medic, and as such it undermines the patient’s absolute rights over his body that are supposed to be protected by consent to begin with.  It also gives a slightly strange picture of the medic’s role: as if he’s dying to operate, and it’s only the mean-spiritedness of the patient that’s stopping him.  But that’s not, of course, how medicine works.  In reality, the patient says, “It hurts here,” and the medic replies, “Well, I think that the best options would be this or this“; and if the patient decides that he doesn’t like the sound of either, then he can take the third option and decide he’ll have neither.  That is to say, the patient is looking for a service to be done, and has the ability to decide that he doesn’t want it after all; the medic is, in this sense, a service provider.  It’s not obvious why anyone would want to add negotiation to the mix, or what would be achieved by it – except diluting the patient’s sovereignty.

Moreover, it means that the patient’s initial decision is rendered suspect – and, potentially, that the patient has to justify not giving consent.  This isn’t a hyperbolic worry: Maclean, bizarrely (I think), seems to accept this possibility:

While the law should not force patients to change their decisions, it should require the healthcare professional seek both reasons and explanations for the decision. (p. 146; emphasis mine)

Um… no.  This isn’t an arrangement we’d want in any other relationship.  You don’t have to justify your decision not to buy the washing machine, or your decision not to have sex.  There’s nothing to negotiate.  The same, I think, applies here.

The small concession is that I can see that it might be politic to try to persuade when there’s a public health aspect.  If the doctor can persuade the patient to tell his partner about his STD, then that’s probably a good thing.  But, still – if the doctor is sufficiently worried, I think that there’s a moral case for saying that the right thing to do isn’t created by conversation; and there may be times when saying, “Nuts to your privacy, matey, I’m telling, like it or not” is perfectly in order.  To talk about arriving at a mutually acceptable courses of action seems either to be platitudinous or simply the wrong decision.  And, of course, to advert to the Harm Principle or something appreciably like is always an option in cases like this.

The other objection to negotiated solutions to disagreements is that they reward the person who cares more about the outcome, or who is simply the more stubborn; and so frequently these “solutions” don’t do anything but waste time anyway.  If I want x and you want ~x, and if I know that you’re open to negotiation, then all I have to do is dig my heels in and wait for you to come to me.  If both parties know this, it means that the “negotiation” will be no such thing; ditto if only one does.  It’s only if both parties are willing to negotiate that negotiations achieve anything; but in those cases, it looks like neither party cares much about the outcome anyway, so the victory that we give to consensus is fairly pyrrhic.

Where does this leave us?  I’m not sure.  But, wherever it is, it’s with a suspicion of aiming for consensus in every decision.  I don’t want to compromise on being uncompromising.  Still, I’m happy to wait for you to see things my way.

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