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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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  • Keith Tayler

    I agree that consensus is not possible in ‘every’ decision, but I am inclined towards the claims of argumentation theory and discourse ethics, that the transcendental presuppositions of practical discourse lead us to consensus. Unlike your account of ’discourse’, the autonomy of the individual is essential. As Habermas puts it:

    “The agreement made possible by discourse depends on two things: the individual’s inalienable right to say “yes” or “no” and his overcoming of his egocentric viewpoint. Without the individual’s uninfringeable freedom to respond with a “yes” or “no” to criticisable validity-claims, consent is merely factual rather than universal. Conversely without empathetic sensitivity by each person to everyone else, no solution deserving universal consent will result from the deliberation. These two aspects – the autonomy of inalienable individuals and their embeddedness in an intersubjectively shared web of relations – are internally connected, and it is this link that the procedure of discursive decision-making takes into account” (Moral Consciousness and Communicative Action, p. 203)

    For sure, Habermas was over optimistic about the level of consensus we can reach within ethical discourse. He eventually conceded, for example, that there may be no consensus possible in settling disagreements over abortion. The uninfringeable freedom to respond with a “yes” or “no” means that individuals are not ‘required’ to negotiate (the ties of “intersubjectivity” can become unconnected) However, in most cases practical discourse is ’negotiation,’ and the victory we give to consensus is by no means pyrrhic. (Nor sure why you believe that if both parties are willing to negotiate they are not bothered about the outcome. Capitalists, for example, spend much of their time negotiating with other capitalists, but that certainly does mean they do not care about what is being negotiated.)

    As an anti-theorist, I cannot follow Habermas et al down the theorising road. However, the principles of argumentation theory and discourse ethics are a good starting point. Waiting for people to see it your way, sounds like it is coming from that bloody armchair again.

    PS. Of course I have not read Maclean’s book or your review of it. At £55 and $32 (24 hour access) respectively I will stick with my cheap German make.

  • Dr John O’Malley

    I feel like a rabbit about to be run over but…..Speaking as someone who still sees patients, I felt the urge to comment.
    Yes, autonomy is important but not the be all and end all. I know I will be accused of paternalism but patients often don’t understand the background to decisions they make and sometimes negotiation in the form of offering further info is in their best interests. To concede the point over the Public Health issue seems at odds to the main point you are making. Public health isn’t just a big sandstone building but is the committment we all make in living in our society to make sure our behaviours dont impinge on others. So in the case of someone who refuses a life saving operation, I think it is proper to try and minimise the effect of their decisions on close relations by pointing out the harm that can be done. If at the end of all that, they still decide on a course of action, good on them but at least, they go in wide eyed.
    I would love to read your review but since Manchester shut down all access to Blackboard the moment our dissertations were presented ( silly me , thinking we were students until we graduate. Oh, we are if they want any money), then I can’t access MLR and it’s a pity because I loved the Sudoku and the cookery articles.

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington/default.htm Iain Brassington

    I’m quite sympathetic to your point, John. There is a slight tendency for people to go, “Oooooh! Paternalism!” and expect that that’s enough to carry the day, when – plainly – it ain’t. And I think your point about public health is also potentially quite powerful: there’s enough of a communitarian in me to think that it’s possibly true that you can’t reliably think of patients as isolated individuals. Even if that’s going to turn out to be mistaken in the end, it’s still an argument worth pursuing. Still: it’s quite a formal point, and even being a communitarian isn’t necessarily going to tell you that the best way to proceed can be established by negotiation, because negotiation still seems to ride on a liberal, individualistic, view of agency – it’s just one that’s based around a version of discourse ethics (which takes us to Keith’s mention of Habermas, I suppose).

    So it would seem that there’s two layers to my suspicion. One is that, if you accept the broad autonomy/ liberty discourse that’s prevalent in bioethics, then negotiations and consensus don’t seem to be an attractive option for the reasons I spelt out in the OP. But the other layer, which has only just emerged, more along the lines that an appeal to consensus seems to erode the liberal-individualistic picture of agency to which we’re used – as encapsulated in the Harm Principle – but it doesn’t fit with the commnitarian model either. So it has to be paternalistic: it’s not obvious that there’s a fourth option to be had. Yet if it’s paternalistic, it seems to be dishonest paternalism. Better simply to tell a patient that they’re wrong, maybe…

  • Keith Tayler

    In his inaugural lecture at Frankfurt University in 1965, Habermas proclaimed that:
    “The human interest in autonomy and responsibility is not mere fancy, for it can be apprehended a priori. What raises us out of nature is the only thing whose nature we can know: language. Through its structure, autonomy and responsibility are posited for us. Our first sentence expresses unequivocally the intention of universal and unconstrained consensus.”

    These are the opening words to a very long theory that leads to discourse ethics. Consensus through argumentation, so the theory goes, does not, as you put it, “ride on a liberal, individualistic, view of agency”, nor does it “erode the liberal-individualistic picture of agency,” for it is through our understanding of language and communicative reason that we understand the source of these liberal values. I question the notion that we can ’know’ language, which makes the rest a little shaky. However, I must defend Habermas’s Kantian project from other “versions” of discourse ethics.

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