Re-thinking consent for treatment: clinical interests and the public interest

By Abeezar I. Sarela.

In its recent guidance on consent, the General Medical Council (GMC) advises doctors to not provide treatment that ‘you (the doctor) don’t think would be in their (the patient’s) clinical interests’. It follows that doctors should only provide treatments that are in the patient’s clinical interests. But, what exactly is meant by ‘clinical interests’?

The GMC does not explain the term. In practice, it is sometimes confused with ‘best interests’. However, best interests is a legal term that applies specifically to making decisions for people who lack the capacity to do so for themselves. For example, oncologists might consider that either chemotherapy A or chemotherapy B could be in the clinical interests of a patient without capacity. Best interest decision-making would then involve choosing between A and B, or avoiding any chemotherapy and giving supportive care only. Whereas, patients with capacity would make these choices for themselves and do not need others to decide their best interests.

The difference between clinical interests and best interests is similar to that between setting a menu and then choosing from that menu. Clinical interests set the menu of treatment options that is available to a patient. Patients can then choose any option from this menu or decline all options, regardless of the consequences, because we all have a right of self-determination. But, do patients have a right to participate in setting the menu, too? Some might say yes. They would argue that treatment availability comes down to a matter of informed consent, through a process of shared decision-making (SDM) between the doctor and the patient.

However, senior judges have been clear that consent is valid only if the proposed treatment is, in the first place, ‘proper’. If the treatment is not proper, then the patient’s consent is meaningless, regardless of the sharing of information. In other words, setting the menu is not a matter for SDM. Rather, informed consent has two distinct stages. In the first stage, the doctor has to identify treatments that are proper (reasonable or available) for that patient. Then, the doctor has to involve the patient in the choosing between available treatments (or not having any treatment). It is this second stage that requires SDM: a dialogue about the menu of available treatments from the first stage.

What is it that makes a treatment available in the first place? Judges have explained that for a treatment to be available it has to be in the ‘public interest’. This turn to public interest can be justified in various ways. In a civilised society, we all (the ‘public’) have an interest in each other’s welfare. And, in some cases, the public interest can override an individual’s own wishes. Furthermore, in a publicly-funded health service it is inescapable that making treatment available to one person reduces resources for others. Consequently, it is in the public interest to set limits on availability of treatment.

The GMC would seem to have re-phrased ‘public interest’ as ‘clinical interests’. The endpoint of both is the same: the identification of available treatments. Thus, in advising doctors to think about a patient’s clinical interests, the GMC is actually asking doctors to consider the public interest. The GMC leaves this task to the professional judgment of doctors; and judges have done similarly. This approach is consistent with a well-established sociological argument that the public grants the medical profession with the authority to make certain decisions on its behalf. As doctors, let’s celebrate this sociological mandate and strive to serve the public. Or let’s challenge it, and find an alternative way. But, in the meanwhile, let’s not hide behind smokescreens of SDM and consent to decide about the availability of treatment.

Author: Abeezar I. Sarela

Affiliation: Department of Surgery, The Leeds Teaching Hospitals NHS Trust.

Competing interests: None declared

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