By Abeezar I Sarela.
Health is foundational to freedom
We live in an increasingly libertarian society. Each individual’s liberty, or freedom, to do as she wishes in leading her own life is highly prized. The emphasis on freedom is particularly high in matters of healthcare. This derives from an appreciation that health is central to freedom in all aspects of life. If a person’s health is poor, then her freedom to pursue various valued goals (e.g. employment or recreation) will be constrained. Moreover, it can be argued that good health has intrinsic importance, irrespective of its instrumentality to other life-goals. In any case, healthcare is a critical determinant of health. Consequently, constraints on a person’s freedom to achieve the healthcare that she values, or prefers, are likely to constrain her freedom in all other aspects of her life.
Respect for autonomy and consent
An individual’s freedom to achieve preferred healthcare is often expressed as her right to self-determination, with a corresponding obligation for healthcare professionals to respect her autonomy. The obligation to respect autonomy correlates with a duty to obtain a patient’s consent before administering any treatment. This correlation is asserted widely in case law and in bioethical theory. It follows that a competent adult is absolutely free to choose amongst available treatments, and to reject any or all treatments; regardless of the views of others. Yet both the law and bioethics are clear in that healthcare professionals are not obliged to, and should not, provide treatment that is contrary to their professional judgment. Hence, it becomes obvious that the exercise of autonomy extends only to either choosing amongst treatments that are considered to be ‘available’ or rejecting all treatments. But, autonomy, as an exercise of choice, does not include demanding simply any treatment.
Consent is not a free-standing ethic
Autonomy, as freedom of choice, is subject to a starting point; and this starting point, itself, cannot be self-determined. By corollary, consent, as an expression of autonomy, is not an absolute or free-standing principle. Rather, consent is contingent: it is applicable only to treatments that have been identified as correct or proper in the first place. Consent can be sought, and given, only for proper treatments. If a certain treatment is not proper for an individual patient, then neither can (or should) the healthcare professional seek consent nor can the patient give consent. Stated differently, consent cannot, and does not, justify or mitigate actions that, in themselves, are improper. As exemplified by a senior judge, ‘If one man chops off the hand of another, it is no defence to say that the amputee consented to the act’.
The duty to obtain consent has two stages
The contingency of consent is underemphasized and poorly clarified in contemporary discussions. Instead, there seems to be a perception that the availability of treatment, itself, can be determined through a process of shared decision-making. Whereas, a theoretically-nuanced approach to consent, as explained above, would view shared decision-making as an opportunity to achieve or reject available treatments. Also, it would acknowledge that the availability of treatment is the starting point, and not the outcome, of shared decision-making. In such a nuanced approach, a healthcare professional’s duty to obtain patients’ consent has two stages: first, to identify proper treatments that are available to an individual patient in the light of her particular circumstances; and second, to provide the patient with adequate opportunities to choose amongst the available treatments or to decline all treatment.
The GMC, law and reliance on professional judgment
In my paper in the JME, I explore the model of consent that is set out in the guidance published by the General Medical Council (GMC) in 2020, and I compare it with model in the GMC’s earlier, 2008 guidance. Both sets of guidance refer to contemporaneous case law: the 2008 guidance cites the judgment of the House of Lords in Chester v Afshar; whereas the 2020 guidance relies on the judgment of the Supreme Court in Montgomery v Lanarkshire Health Board. I argue that both judgments, and the corresponding guidance from the GMC, implicitly cleave consent into the two stages that I have pointed out earlier. Furthermore, Montgomery accepts that the availability of treatments is to be determined by the clinical judgments of healthcare professionals. The Montgomery judgment then focusses on the adequacy of the opportunities that the professionals have to provide to patients to achieve, or reject, such available treatments. Nonetheless, Montgomery, and, accordingly, the GMC’s 2020 guidance, retain the reliance on the judgment of healthcare professionals to identify treatments that are ‘reasonable’ and ‘available’. Such reliance on professional judgment is inescapable, and it requires to be explicitly declared rather than being conflated with, and obscured by, respect for patients’ autonomy.
Paper: Does the General Medical Council’s 2020 guidance on consent advance on its 2008 guidance?
Author: Abeezar I Sarela
Affiliations: Department of Surgery, Leeds Teaching Hospitals NHS Trust, Leeds, Leeds, UK
Competing interests: None declared