Chapter 1

There is a growing demand among patients for more responsive consultations with doctors that will enable them to participate in clinical decision-making.1

Traditionally health care was delivered on the basis that the doctor knew what was best for the patient. This tradition could be traced back to the Hippocratic Oath in which the doctor pledges to use those ‘regimens which will benefit my patients according to my greatest ability and judgement’.2 Decisions about what treatment should be given and when and how the treatment would be delivered were in the hands of the doctor.3 This tradition – medical paternalism – is ebbing, and gradually being superseded by a modern approach which places the patient at the centre of care.4 In contemporary medical and legal practice it is acknowledged that patients have a right to be proactively involved in decisions about their treatment and that a breach of this right is a breach of the patient’s bodily integrity.5 For this right to be respected in clinical practice, consultations with doctors have to be responsive, as stated in the epigraph above.

Historically, consent has been the medium by which the doctor ensures that the treatment he/she provides does not violate the patient’s bodily integrity. It must be stated at the outset that consent is not regarded in this book as a right or, as Brownsword puts it, a free-standing ethic;6 rather it is the medium by which the law protects the patient’s right to bodily integrity.

Consent has served its purpose and continues to play a major role in medical consultations but, with the movement from medical paternalism to proactive patient involvement in decision-making, and with increasing use of rights discourse, questions are now being asked as to whether the consent model remains fit for purpose and whether there are alternative models which offer advantages where consent has limitations.7 The law, as reflected in judicial pronouncements, seeks to protect the self-determination (‘autonomy’) of the individual through consent but critics have doubted that the law actually achieves what it sets out to do in this regard.8 For a start, there is no uniform conception of autonomy in law, ethics and philosophy. Even if an agreed conception of autonomy were to be articulated for medical law and bioethics, Manson and O’Neil assert that the prevailing approach to consent does not protect self-determination,9 and McLean states that ‘the law has developed in such a manner as to be systematically incapable, or perhaps unwilling, to find a formula that can support the preferred account’.10 Given that, arguably, consent as currently operationalised does not protect the patient’s right to self-determination, other critics have sought to develop more nuanced models of consent.11

What is quite clear, and more or less universally agreed, is that consent as currently applied by the courts and by clinicians is inadequate in serving the intended purpose, and an alternative approach needs to be considered. It may well be, however, that the answer lies not in a refashioning of consent but in consideration of a different model. I would argue that, for various reasons, producing more sophisticated accounts of consent may not be the answer. In a nutshell, the argument is as follows.

Firstly, while the consent model has its strengths, it has fundamental flaws that warrant consideration of alternative model(s). Secondly, 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.12 Fixation with consent in the face of contemporary developments in medical law could have similar consequences, and it will be argued in this book that the judicial thinking and outcome in the celebrated case of Chester v. Afshar13 reflected fixation with the consent model.

Thirdly, while the more nuanced conceptions of consent may have ethical and philosophical sophistication, they do not provide a readily applicable legal framework. The ethical foundations of consent are important, but the primary focus of this book is on the legal protection of the patient’s right to self-determination.

Finally, the limits of the consent model have to do not only with the theoretical construct but also with the gap between the paradigm of consent espoused in theory and the paradigm that is operationalised in clinical practice. No matter how much theorising is done about consent, the desired goal of protecting the patient’s right to self-determination will not be achieved if the legal framework for achieving this has no bearing on the attitudes and behaviour of clinicians.14 Conversely, a legal framework that is in harmony with the context of clinical practice is more likely to serve the patient’s interests effectively. In other words, any framework that aims to secure and enhance the protection of patient self-determination should be embedded in the core of medical professionalism if it is to be maximally effective. It is argued in this book that the limitations of the consent model (and especially the diluted paradigm of consent operationalised in clinical practice) are potentially avoidable in a new model, and that the new model should be embedded not only in the common law but also in medical professionalism. It will also be argued that, given recent guidance from professional bodies and regulators, the model advocated in this book is more likely to be embedded in clinical practice than the consent model has been – because the recent professional guidance has at its core the underlying principles of the proposed model.

In the light of the criticisms and limitations of the consent model, this book explores the potential benefits of a property-based approach to protecting the patient’s right to self-determination. The property model comprises the following elements:

• the patient’s right to self-determination is protected as a distinct legal right

• the patient’s right to bodily integrity is a proprietary right

• the patient also has a proprietary right in his/her legitimate expectation of involvement in decision-making about their own treatment

• correlative to the patient’s proprietary rights, the doctor has a fiduciary duty to enable the patient to make an informed decision, by providing relevant information

• pursuant to this fiduciary duty, the doctor–patient consultation is transactional (rather than the unidirectional passive transfer of data – described as the conduit paradigm15 of information disclosure – that is practised in consent discussions)

• there is a bilateral distribution of responsibilities between doctor and patient: the doctor has a responsibility to take reasonable steps to ensure that the patient understands the information provided, and the patient takes responsibility for the information communicated to the doctor and also for his/her own decision.

It could be said of the property model, as was said of the doctrine of informed consent by an academic commentator, that it ‘weaves social policy, communication theory, patient-doctor interactions and medical ethics into a complex legal tapestry’.16

Taking as my starting point the position that treating patients without reference to, or in disregard of, their views and preferences is anathema in contemporary clinical practice, I compare the subsisting consent model and the proposed property model. I begin with a discussion of the patient’s right to self-determination, drawing on concepts of medical paternalism, anti-paternalism and consumerism (Chapter 2). An attempt has been made to substantially elucidate the concept of paternalism because this is the antithesis of what the consent and property models both seek to entrench. Breach of the duty of care in tort cannot arise in the absence of a relationship, so the nature of the doctor–patient relationship is also explored in this chapter. An essential element of the proposed property model is a doctor–patient relationship in which the doctor, acting in a fiduciary capacity, provides the patient with information on the nature of the condition and possible interventions, and assists the patient in determining which medical interventions fit with the patient’s articulated values, with the patient retaining ultimate decisional control.

This is followed by a discussion of the legal and ethical aspects of the consent model (Chapters 3 and 4) and analysis of the limitations of this model (Chapter 5

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