Contextualising consent
No medical ethicist worth their salt would deny that consent is a foundational concept in contemporary medical ethics. Academic ethicists have spent countless hours dissecting consent in extensive theoretical detail: fleshing out its different components, tracing back its moral theoretical heritage, and articulating and defending its boundaries. In medical practice settings, the tendency is to go the other way. Obtaining consent here risks becoming overly proceduralised; a tick box exercise that exists solely to ensure that medical practice is aligned with prevailing professional requirements. In this environment, consent subtly shifts from being used as a noun to being used as a verb. It is common to here doctors and medical students talking about 'consenting' their patients as a distinct and abstracted action that previous research suggests can intrude into a healthcare encounter, depersonalising the delivery of care, and decreasing the quality of communication between doctor and patient. Writing about the medical research setting, this approach to consent in practice has been described as 'empty ethics' where the activity of obtaining consent from a research participant is stripped out of the real world context within which its meaning and value can be made sense of. It must be correct that, whilst we can gain much insight from careful philosophical dissections of consent and its value, our ability to shape practice for the better and to avoid a regimented approach that treats 'consenting' as a mere matter of professional compliance depends on our ability to take seriously the various contexts in which instances of consent occur. At least in part this is because, stripped bare, consent is about the giving or withholding of a particular type of permission. As they manifest themselves in the world of healthcare, these permissions are embedded in interpersonal interactions, shaped by social context and the vagaries of language. Consent, then, is a messy business. The process of obtaining consent in ethically defensible ways depends on the ability of the practitioner obtaining consent to attend to the particularities of the patient or research participants, the issue under questions, and the wider socio cultural context in which permissions of all kinds are sought. It should be immediately apparent from this very brief discussion that obtaining consent from a patient requires a significant degree of skill. The skills to be demonstrated here are not, however, about practitioners' ability to outline the precise formulation of respect for autonomy that consent embodies, or to be able to memorise a list of medical facts that the patients should be told about. Instead, getting consent right requires the making of continual judgements by practitioners about how, what, and when interactions with patients ought to be steered towards clarifying whether a patient agrees with an emergent course of action that is being discussed as part of ongoing clinical care. This issue of the Journal of Medical Ethics includes a number of papers that, in different ways, aim to navigate the intrinsic messiness of consent such that encounters between practitioners and patients are appropriate for context. One focal point in which the contextualisation of consent manifests itself is in the general relationship between front line healthcare practice and the legal rules that are put in place to regulate it. Two papers by Farrell and Brazier (see page 85) and by Montgomery and Montgomery (see page 89) provide a critical analysis of a recent UK Supreme Court judgement that centres on the informational requirements for valid consent. The position outlined in the Montgomery judgement requires healthcare practitioners to tailor the information they provide to patients by judging what the reasonable patient would expect to know, given the circumstances of the situation, rather than by reference to a professional standard based on medical consensus. Farrell and Brazier provide a useful and detailed history of the legal heritage of this development, and consider the likely implications for medical law and practice in the UK moving forward. In contrast, Montgomery and Montgomery take issue with the judicial reasoning in the case itself, arguing that a number of misconceptions and problematic inferences were made by the Supreme Court justices who decided the case. One particular point raised by Montgomery and Montgomery is what follows for healthcare expertise in light of the decision by the judges to distinguish between judgements that are purely medical (e.g. whether a particular medication will be effective) from those that involve nonmedical considerations (e.g. which risks to disclose to a patient or what course of treatment to recommend) As they observe, one concern with applying different legal tests to these two kinds of judgements is that it goes against the grain of healthcare practice and training, focused heavily as it is on making holistic judgements about patients' interests and needs within a shared decision making model. Whilst much attention on the Montgomery case has focused on the evidence it provides for further advancing the value of respect for patient autonomy in medical practice, this should not be the only conclusion that those working in healthcare take from this judgement or similar legal developments in other jurisdictions. In both education and practice, tailoring information to what a reasonable patient ought to be told, given the individual patient's specific circumstances, is not simply a matter of asking the patient to share her values in order to tailor consent and information disclosure to what matters to the patient. To do so would again be to risk abstracting the consent process from the medical encounter in which it is situated. Knowing how to articulate the patient's values, when to do so, and how to shape a conversation about treatment options in order to enable the patient to make a properly informed decision is a key requirement here, both ethically and legally. The law is just as much concerned with fostering therapeutic partnerships in which doctors, as active partners in decision making, make correct and qualitative judgements about what treatment options to offer, and what risks to disclose, to their patients; as Farrell and Brazier put it, 'ways of knowing are contextual' Interpreting these legal developments in this way is far removed from a rudimentary and naive view that sees the Supreme Court judgement as the legal requirement of doctors to kowtow to patients' articulated values, rather than the evidence based wisdom of their esteemed colleagues, in order to obtain valid consent. Changing the scale of analysis, it can also be seen that the challenge of
Journal of Medical Ethics