Mindless consent

By Edwin Jesudason.

How could consent be mindless, if it’s about our choosing to give permission?  We could suggest at least two ways, the first familiar, the second – and the topic of this blog – perhaps less so.

The first is habitual: the mindless ‘consent’ many of us give, with a passing click or two, when updating phone software, managing cookies online or accepting further email offers.

But the second is important: consent for surgical intervention that’s mindless because the operator fails to disclose the risks of serious mental health complications. By law, we should be warned about such material risks, whether physical or psychiatric. Consent processes have evolved to see substantially improved disclosure of the former. My case, argued in the Journal of Medical Ethics, is that this needs to improve for psychological hazards too – or else risk operators being sued for negligence. Closing this gap could also help desegregate services for physical and mental health, by seeing practitioners cooperating across the traditional divide in order that patients are informed and treated holistically.

The idea for this paper grew out of my clinical practice, both as a consultant surgeon, and now as a consultant in rehabilitation medicine. The former experience allowed me to reflect on how consent processes have improved over the last three decades or so – with sincere efforts to disclose material risks to patients in the hope that this protects their decision making.

But the rehabilitation experience has highlighted to me how often patients suffer psychologically after  surgical intervention. In clinic, it became clearer that often people are wrestling not only with misconceptions and regrets over the original case for surgery – but also with steep deteriorations in their psychosocial health that may have gone unmentioned preoperatively.

This led me to wonder whether we ought to be doing more pre-operatively to prepare people for this and, in particular, those who may be more prone to trauma and depression on account of prior life experiences. I think the opportunity exists, in that many elective patients attend for surgical pre-assessment clinics already. At present, these tend to focus on anaesthetic considerations including overall fitness for surgery. But it’s conceivable that these same contacts could be used more for prehabilitation – where not just fitness, but psychological preparedness can also be attended to. Taking this approach could bring craft specialists, like surgeons, together with cognitive specialists like rehabilitationists, psychologists and psychiatrists in order to counsel patients more holistically. This would also have the effect of craft and cognitive specialists learning from one another and, in so doing, breaking down some of the walls erected between physical and mental health services.

That’s all very well you might say. But what’s going to drive this change? My case is that our legal duties toward consent could help move us here. Specifically, there looks to be a risk – where craft specialists are sued for foreseeable psychiatric complications that arose from their handiwork, but about which they failed to counsel their patient, properly or at all. This negligent consent could be costly, but could also be avoided via better cooperation between physical and mental health practitioners in the manner I’ve advocated.

Disclosing information in the hope of meeting other minds.


A second objection might be that consent can be delegated to AI chatbots. My case remains that we avoid mindless consent, even in this form. After all, consent is, ideally perhaps, a meeting of minds: the surgeon seeking to understand what the patient expects and fears; the patient wanting to understand the surgeon’s intent – and their confidence and capability in its pursuit. Most of all, perhaps, the patient may want to feel the surgeon has them fully in mind – as a person to be protected with the greatest care.

In summary, consent for surgery isn’t about the mindless ticking of boxes or delegating this to AI. It’s more about empathy and imagining what might reasonably matter to another. Focus on the psychological complications of surgery may help surgeons to build further in this direction, by working more closely with cognitive specialists. Together with patients, we can plan for surgery, more skilfully – and with complications more fully in mind.


Paper title: Consent with complications in mind

Author::  Edwin Jesudason

Affiliations: NHS Lothian, Rehabilitation Medicine, Astley Ainsley Hospital, Edinburgh, EH9 2HL

Competing interests: None to declare

Social media accounts of post authors: @Edwin1432

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