An agency model of consent and the standards of disclosure in health care: Knowing‐how to reach respectful shared decisions among real persons

Abstract

Objective In this article, we evaluate and compare the frailties of two different standards of disclosure of information regarding the risks of medical procedures applied in recent judicial decisions in the United Kingdom. As an alternative, we present the tenets and philosophical grounds of an agency model of consent and a person‐based standard of disclosure. Methods Critical philosophical analysis of the background assumptions of two standards of disclosure and their relative “tests of negligence” applied in recent legal judgements in the United Kingdom. Results Both standards, the “Professional Practice Standard” (the traditional standard employed in Sidaway versus Board of Governors of the Bethlem Royal Hospital, 1985) and the allegedly new “Reasonable Person Standard” (mentioned in Montgomery versus Lanarkshire Health Board, 2015), can lead to malpractice if the medical‐patient relationship is not guided by attitudes of respectful care. The traditional standard is disrespectful as it does not take patients as full agents, presupposing that the patient's right is only a negative right to refuse what was deliberated only by the practitioner. The “new” standard can be disrespectful if the practitioner, concerned only with what a hypothetical reasonable individual would take as relevant for choosing between alternatives of treatment, does not know how to respect their real patient in a genuine shared decision‐making process. Conclusion We conclude that in order to know how to obtain valid informed consent, doctors need to engage in real conversations with their patients, revealing as much information as they, taken as real persons, need to be part of a genuine shared and respectful decision‐making process.

Shared decision‐making and the nuances of clinical work: Concepts, barriers and opportunities for a dynamic model

“…Respondents frequently see patient input as a (negative) response to guideline‐based treatment options. Two respondents explicitly described that SDM meant giving the patient a choice in treatment, in case “the patient does not agree with our advice.” This description resonates with what Azevedo & Dall'Agnol 19 describe as SDM being a “negative right” that stems from the notion that patients cannot be forced to submit to any course of action against their will. Another assumption of this framework, referred to as the “Professional Practice Standard,” is that decision‐making is based on “what any reasonable expert would do,” which excludes patients as active agents in decision‐making.…”

“…Another assumption of this framework, referred to as the “Professional Practice Standard,” is that decision‐making is based on “what any reasonable expert would do,” which excludes patients as active agents in decision‐making. 19 Indeed, several respondents mentioned examples that show the difficulty of reconciling SDM with guideline adherence, making attempts to share decisions feel contrived.…”

Montgomery's legal and practical impact: A systematic review at 6 years

“…Even if litigation for negligent disclosure has not increased, many suggest that outcomes have become less predictable post-Montgomery. 5,32,36,42,47,60,64,77,100 This unpredictability is commonly attributed to uncertainty concerning how courts will assess material risks, 9,11,19,21,23,32,33,45,46,60,75,77,86,88,89,91,103 apply the subjective patient limb of the test, 9,18,22,23,31,36,41,42,48,60,81,86,90,92 allow the therapeutic exception, 5,6,22,25,31,33,34,37,[58][59]…”

Editorial introduction: Decision making, reasoning, context, and perspective

“…It opens with a series of papers aimed at improving our understanding of the underlying philosophy of SDM and associated concepts and methods, including agency, autonomy, phenomenology, self-disclosure, epistemic justice, the logic of choice and the logic of care, and how to recognize and respect the personhood of patients, practitioners, and other affected parties in practice. [2][3][4][5][6] Authors argue that the meaningful implementation of SDM presents not only practical but conceptual challenges. Articles focus on the cognitive and emotional skills needed to implement SDM, and the need for broader conceptions of reasoning and evidence in clinical practice-conceptions that fully acknowledge and meaningfully utilize diverse sources of evidence, addressing the role of trust, the first-personal perspective, the distinction between "bias" in clinical decision making and attention to relevant differences, and even the role of differences determined by sheer luck.…”

“…Consequently, this edition of the journal continues the debates which commenced in the 2019 thematic edition, featuring papers that address how best to conceptualize, implement, and evaluate SDM and PCC in a vast range of professional, social, cultural, and national contexts. It opens with a series of papers aimed at improving our understanding of the underlying philosophy of SDM and associated concepts and methods, including agency, autonomy, phenomenology, self‐disclosure, epistemic justice, the logic of choice and the logic of care, and how to recognize and respect the personhood of patients, practitioners, and other affected parties in practice . Authors argue that the meaningful implementation of SDM presents not only practical but conceptual challenges.…”