Informed Consent and the Need for Understanding
Abstract: This paper draws upon work conducted as part of my PhD which asks: is there, or should there be, a shared understanding of informed consent to surgery across medical ethics, medical professional regulation and medical law. My paper focuses upon the role of understanding in informed consent to surgery.
Medical professional regulation (in the form of guidance issued by the General Medical Council) and medical law both see autonomy as underpinning the need for a doctor to seek a patient’s informed consent to surgery. Autonomy is an ethical concept and Beauchamp, in his works with Faden and Childress, offers a concept of autonomy that incorporates the need for patients to have an adequate understanding of information given to them in order to make an autonomous choice about treatment. The need for understanding is echoed in the regulatory and legal standards of informed consent which require doctors to disclose information in a manner comprehensible to the patient and to check patients have understood the information given.
However, my analysis of fitness to practice decisions and court judgements applying those standards demonstrates a reluctance on the part of tribunals and courts to compel doctors to check understanding, even in the face of an actual misunderstanding by the patient. Thus, whilst the regulatory and legal standards of informed consent are aimed at respecting patient autonomy, their application fails to do so as patients can make decisions about treatment without the requisite understanding. This paper asks in light of those findings, should it be a requirement of informed consent that a doctor checks the patient understanding of information given and, if so, how far should the doctor go to meet that requirement.
Biography: Louise Austin is a Lecturer in Law at Cardiff University where she teaches Torts on the LLB undergraduate programme and Legal Aspects of Medical Practice on the LLM postgraduate programme.
Louise is also competing her PhD at the University of Bristol titled ‘Understanding Informed Consent’, funded by the Economic and Social Research Council’s 1+3 programme. Her PhD asks whether there Is a shared understanding of informed consent to surgery across medical ethics, medical law, and medical professional regulation. Utilising the empirical bioethics methodology of reflexive balancing, Louise’s research reviews ethical, legal and regulatory literatures and produces an analysis of selected English High Court judgements and Fitness to Practice Panel decisions, in order to address this question.
Prior to undertaking her PhD, Louise spent thirteen years working as a clinical negligence lawyer acting on behalf of patients and was accredited by the Law Society as a clinical negligence specialist.
She was a member of the Institute of Medical Ethics Postgraduate Student Committee between February 2016 – February 2019 and co-chair of the Committee between May 2017 – July 2018.