The UK Supreme Court’s recent judgement inMcCulloch v Forth Valley Health Boardclarifies the standard for the identification of ‘reasonable’ alternative medical treatments. The required standard is that of a reasonable doctor: treatments that would be accepted as proper by a responsible body of medical opinion. Accordingly, the assessment of consent involves a two-stage test: first, a ‘reasonable doctor’ test for identifying alternative treatments; followed by a ‘reasonable person in the patient’s position’ test for identifying the material risks of these reasonable (...) alternative treatments. The separation of consent into two stages is consistent with not only a certain conception of freedom but also a nuanced construct of respect for autonomy that has a normative base. Furthermore, reliance on a reasonable doctor in the first stage is in keeping with a sociological account of medical professionalism, which posits that only doctors, and none others, can determine what is a proper treatment. Yet, reliance on a reasonable doctor permits a plurality of standards for reasonableness, because differences in opinion among doctors are pervasive. The reasons for some differences might be acceptable as unavoidable imperfections in medical decision-making to a reasonable person. But reasons for other differences might be objectionable; and the resultant inequalities in medical treatments would be considered unfair. One solution is to make the plurality of reasonable alternatives available to the patient, but this would introduce practical uncertainty and it is rejected by the Court. The Court’s approach may be pragmatic; however, it seems to allow avoidable injustice in healthcare. (shrink)

Parsa-Parsi et al assert that the International Code of Medical Ethics (ICoME) provides a professional standard that overrides conflicting national legal norms.1 While this claim is made in the context of laws that require doctors to participate in ‘acts of torture, or other cruel, inhuman, or degrading practices and punishments’ (para10 of ICoME), the underlying premise that medical ethics supersedes law requires scrutiny. It is clear that medical ethics and law are linked inextricably, but there is unresolved debate about the (...) sequence of this interaction: should ethics shape law; or is it the converse? Important principles, notably respect for patients’ autonomy, have arisen from case law and subsequently been adopted into medical ethics. As pointed out by Beauchamp and Childress, it is only ‘since the mid-1970s (that) the primary justification advanced for requirements of informed consent has been to protect autonomous choice’ (pg.118).2 Whereas, the legal obligation to respect autonomy can be traced to the early 1900s, in the landmark US case of Schloendorff v Society of New York Hospital : ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body’.1 Moreover, the term informed consent was born in law: it was coined …. (shrink)

The General Medical Council (GMC) instructs doctors to act ‘reasonably’ in obtaining consent from patients. However, the GMC does not explain what it means to be reasonable: it is left to doctors to figure out the substance of this instruction. The GMC relies on the Supreme Court’s judgment in Montgomery v Lanarkshire Health Board; and it can be assumed that the judges’ idea of reasonability is adopted. The aim of this paper is to flesh out this idea of reasonability. This (...) idea is commonly personified as the audience that has to be satisfied by the doctor’s justification for offering, or withholding, certain treatments and related information. In case law, this audience shifted from a reasonable doctor to a ‘reasonable person in the patient’s position’; and Montgomery expands the audience to include ‘particular’ patients, too. Senior judges have clarified that the reasonable person is a normative ideal, and not a sociological construct; but they do not set out the characteristics of this ideal. John Rawls has conceived the reasonable person-ideal as one that pursues fair terms of co-operation with other members of society. An alternative ideal can be inferred from the feminist ethic of care. However, the reasonable patient from Montgomery does not align with either theoretical ideal; but, instead, is an entirely rational being. Such a conception conflicts with both real-life constraints on rationality and the doctor’s duty to care for the patient, and it challenges the practice of medicine. (shrink)

The decision of the High Court in Bell v Tavistock has excited considerable discussion about lawful consent for puberty-blocking drug treatment for children with gender dysphoria. The present paper draws attention to a wider question that surfaces through this case: is informed decision-making an adequate practical tool for seeking and obtaining patients’ consent for medical treatment? Informed decision-making engages the premises of the rational choice theory: that people will have well-crystallised health goals; and, if they are provided with sufficient information (...) about medical treatments, then they will be able to choose the treatment that satisfies their goals. Whilst appealing, the informed decision-making paradigm is assailed by various fallacies, which apply not only to children but also to adults. In Bell v Tavistock, the High Court seems to have recognised such fallacies, and it rejected informed decision-making as an adequate tool for consent from children with gender dysphoria. Similar considerations apply to adults in various situations. Thus, Bell v Tavistock can be seen as an attempt to refine the views on the consent that were expressed by the Supreme Court in Montgomery. It can be inferred that the Supreme Court did recognise the limitations of informed decision-making, but it did not develop this point. Further work is required to formulate an adequate model of decision-making, and Bell v Tavistock serves as a useful reminder to rethink informed decision-making as the device for consent. (shrink)