Chapter 10

If the legitimate interests of patients are to be safeguarded by law, there is a need for developments which involve more than fine tuning of the law of torts.1

[P]atients ‘need to be able to choose which dance they want, know the steps needed and be able to hear the music’.2

Self-determination has traditionally been highly valued in western societies. With the ascendancy of rights thinking, the right to self-determination has become even more highly valued, and this change has induced shifts in the medical and legal arena. In the sphere of medical investigation, diagnosis and treatment, it has led to the decline of paternalism. In the courts, deference to the medical profession has given way to a desire to uphold patient self-determination.

Unfortunately, the current legal framework (the consent model) for dealing with breach of the patient’s right to self-determination has been relatively static and has not responded sufficiently to changing times and priorities. Although it is well recognised that the consent model is sub-optimal for protecting patient self-determination, suitable alternatives have not been proposed and one commentator has hinted at a need for lateral thinking:

Criticism of the Sidaway decision, and the hope that the House of Lords will come to adopt a different approach, has dominated English academic writing relating to ‘informed consent’ for much more than a decade. It has distracted attention from the important question of whether the law of torts can ever have much of a role in protecting the legitimate interests of patients to be informed about risks and alternatives. It has also distracted attention from the question whether there are other ways in which the law could play a more significant role, and the related question of whether any other form of legal regulation is likely to do more harm than good.3

What is needed is more than a fine tuning of the law as it currently stands. In Chapter 1, I made the point that as a general principle when a tool, system or strategy is not delivering the required end-product, consequent to fundamental flaws, it is often more productive to think laterally and consider alternative approaches, rather than persist with efforts to rescue the failing one. Sticking to the failing model when the situation calls for an alternative model could become a fixation, and it is well recognised in psychology and business that fixation increases the probability of poor judgment, poor decision-making, error and adverse outcomes.4 Fixation with consent in the face of contemporary developments in medical law could have similar consequences. The case of Chester v. Afshar was a missed opportunity for lateral thinking and departure from fixation on consent.5 The answer lies not in a refashioning of consent but in consideration of a different model.

This book has attempted to explore an alternative way – the property model – in which the law could seek to protect the patient’s right to self-determination. In preceding chapters, an effort has been made to show not only that the property model offers greater stringency of protection of patient self-determination than the consent model does, but also that it could be more robust than contract and human rights law in providing this protection. It has also been shown that the property model is consistent with the evolution of UK case law relating to patient involvement in medical decision-making, and with current professional guidance and professionalism. The model provides the judiciary with an appropriate tool for implementing the commitment to patient self-determination that was demonstrated in Chester, and in Montgomery.6 In essence, the decision in Chester was based on policy considerations, and I submit that the property model is consistent with public policy.

The Two Models Compared

The consent and property models are not mutually exclusive – they have some properties in common (see Table 9.1). For example, the underlying principles of the property model are almost identical to those of the social construction theory of consent.7 There could be an argument for ameliorating consent rather than, as it were, throwing away the baby with the bathwater. The point has been made in Chapter 1 and reiterated above, however, that it is often preferable to think laterally and consider a new model instead of remaining fixated with a current model that is not fit for purpose. As discussed in Chapter 5, scholarly efforts to make consent more protective of self-determination are unlikely to have practical application in courts or in clinical practice.

For the patient, the property model removes some of the barriers he/she has to contend with under the consent model, making it more likely that his/her right to self-determination will be respected by the doctor and easier to obtain a remedy when the doctor’s duty to communicate effectively has been breached.

For the doctor, the property model makes clear (at least compared to the consent model) what his/her duties are with respect to the patient’s need for information and the patient’s role as ultimate decision-maker. For doctor and patient, the property model promotes communication (a two-way process) and promotes a collaborative model of their relationship. For the courts, the property model provides simplicity, clarity and certainty, and a means to protect patient self-determination without the type of controversial judicial contortion shown in Chester.

In the consent model the right to accept treatment is relative, whereas the right to refuse treatment is inalienable. In the property model, the right to self-determination is inalienable regardless of whether this is expressed as agreement to, or refusal of, treatment.

Fundamentally, the property model is not intended to, and does not, confer or create any new rights. It is simply presented as a model affording more robust protection of a right (the right to self-determination) that is legally and ethically acknowledged.

No constitutional, professional or other conflict is generated by applying the property model to patient self-determination. For example, there is no conflict with human rights legislation or with professional regulation.

Communication between Doctor and Patient

Without effective communication, patients will be unable to choose which dance they want or to hear the music.8 Until the vulnerability of the patient arising from the informational gradient is addressed, there cannot be adequate protection for patient self-determination. Communication between doctor and patient is essential for meaningful expression of the patient’s right to self-determination, but this does not appear to feature in the consent model and Jones has stated that ‘it seems likely that the law does not have a positive effect on the quality of doctor-patient communication’.9

Case law on consent has been concerned mostly with information disclosure, particularly the question of how much information should be disclosed and who determines this. Further, most of the cases relating to disclosure of information that have reached the courts have focused on disclosure of risk. In clinical practice this has led to undue emphasis on risk, with particular focus on what percentage of occurrence warrants disclosure. A study of hospital clinicians reported that ‘[i]n order to meet the legal obligations relating to consent, the nature of the information provided to patients centres mainly on risk disclosure’.10

While Manson and O’Neill have emphasised the importance of communication in consent,11 Maclean points out that they have focused on the obligations of the health-care professional, which shifts the discourse back to disclosure rather than to interaction between both parties.12 The property model is rooted in the kind of transactional process between doctor and patient that Manson and O’Neill recommend, rather than a unidirectional flow of information. This emphasis on communication has ethical as well as legal foundations:

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