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Ethical Issues - Consent

Ethical considerations

Respect for Autonomy

The principle of respect for autonomy underpins the requirement for valid consent to treatment. This principle acknowledges the right of a person to determine how his or her life should be lived and to make choices that are consistent with his/her life’s plan. While respect for autonomy is often associated with deontological theories, utilitarian philosophers such as John Stuart Mill also stress the importance of an individual’s right to determine how he/she lives his/her life, free from coercion:

“the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others to do so would be wise, or even right”
(Mill JS, On Liberty, 1982, Harmondsworth: Penguin, p 68).

Autonomy is not all or nothing. Very few of us are able to make fully autonomous choices all the time. Some of us, in certain situations, will not have the ability to understand and evaluate the options in order to make a choice. The more complex the choice and the more impaired our ability to understand, the less we are likely to be able to make an autonomous decision. This has implications for respecting autonomy in the context of health care, specifically in relation to consent to treatment. First, health professionals have an obligation to endeavour to enhance autonomy and facilitate the likelihood of a patient being able to make an autonomous decision. Second, where a patient is unable to make an autonomous decision, it is the duty of the health professional to act in the patient’s best interests. However, even in these situations, an effort should be made to discover any previous preferences of the patient, or current wishes, in order to respect his/her autonomy as far as possible.

Rationality, competence and autonomy

Does an autonomous decision have to be rational?

“In the ideal of autonomy day - to -day decisions should be rational, i.e. consistent with the person’s life plans” (Hope, Savulescu and Hendrick, Medical Ethics and Law, the core curriculum, Churchill Livingstone 2003 p 34).

However this internal rationality may not be viewed as rational by an external view. A health professional may judge the rationality of a patient’s decision by its consistency with the professional’s view of what would be in the best interests of the patient. A decision that is seen as contrary to the patient’s best interests may be interpreted as irrational by the health professional and therefore the patient may be seen, erroneously, as not competent to make an autonomous choice. It is the internal rather than the external rationality that is important here. A patient is not necessarily incompetent simply because he/she doesn’t agree with the health professional about the suggested treatment. A good example of this is the case of a Jehovah’s Witness who refuses a life saving blood transfusion. The decision appears irrational to the health care professional but is internally consistent with the beliefs of the patient.

Beneficence and Best Interests

The principle of beneficence highlights the moral importance of doing good to others. When a patient is unable to make an autonomous choice the health professional has a duty of beneficence. Beneficence is usually considered to rely on an objective view of what would be best for the patient whereas respect for autonomy identifies what the patient subjectively considers to be in his/her best interests.

The concept of ‘best interests’ is linked to well-being / beneficience but includes considerations wider than purely medical risks and benefits such as the religious and cultural interests of the patient. This implies a duty to discover if possible what the patient would have wanted or what is likely to be appropriate in the context of this patient’s particular life. Thus respecting the patient as an individual person (or respecting his/her autonomy) is an intrinsic part of the process of determining best interests.

There is generally no conflict between beneficence and the principle of respect for autonomy - most patients would choose the course of treatment that is objectively considered to be in his/her best interests. However difficulties arise where the view of a competent adult patient as to what is in his/her best interests conflicts with medical opinion - for example where a Jehovah’s Witness patient refuses treatment using blood products. The principle of respect for patient autonomy overrides the principle of beneficence in a competent patient. If the patient is unconscious, then knowledge of what he/she would have wanted in the circumstances is part of the assessment of what is in his/her best interests. If the patient is able to communicate but is not competent to make the particular decision, the health professional should still seek to ascertain any wishes, preferences and values of the patient that may be relevant to the decision.

It may be helpful to consider how judges in legal cases have used the concept of best interests.

Re F [1990] 2 AC 1

The House of Lords considered whether it was in the best interests of an incompetent adult female patient to be sterilized to prevent her becoming pregnant. The court took the view that treatment would be in the best interests of a patient if it is carried out to:

  • A) save the life of the patient, or to
  • B) ensure improvement / prevent deterioration in the patient’s physical or mental health.

This would cover basic care such as dental care and washing and dressing the patient.

The concept of best interests is wider than a consideration of purely medical issues:

Re Y [1996] 35 BMLR 111

The patient (Y) was 25 years old, severely mentally and physically handicapped. She lived in a nursing home but had a close relationship with her family. One of her three sisters suffered from leukaemia and needed a bone marrow transplant. The patient was the only suitable donor. The court considered that it was in Y’s best interests to donate bone marrow to her sister even though there was no therapeutic medical benefit to Y (and a minimal risk to Y from the procedure). The court considered that it was in Y’s emotional, social and psychological interests, since, if Y’s sister died, Y’s mother would have to look after the sister’s daughter and therefore be unable to spend as much time visiting Y in the nursing home.

There is much discussion in ethics literature about the interpretation of best interests. If a wide interpretation is given to “best interests” then the interests of those other than the patient may be taken into account in determining the interests of the patient and there is a danger of moving away from the patient as a focus for legal / ethical decision-making.