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Consent Without Alternatives

Written by Ben Davies and Joshua Parker

“COVID-19: Do not resuscitate orders might have been put in place without consent, watchdog says”. This recent headline followed an investigation by the Care Quality Commission into Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) decisions early in the pandemic. In a recent post, Dominic Wilkinson highlights two misconceptions in the coverage of this report, one of which is the ‘consent misconception’.

Dominic’s view is that “there is no ethical requirement…to seek the agreement of patients not to offer or provide a treatment” which a medical professional judges inappropriate. Of course, his position is not that consultation and discussion around CPR is inappropriate, only that consent is not necessary. This is the standard view on consent in this context and, due in part to the Tracey judgment, reflects doctors’ practice. Thus, an important distinction emerges between consenting to the withholding of some treatment, and discussion of that decision. Doctors may be ethically required to discuss a decision without also having an obligation to seek the patient’s consent. The absence of consent, then, does not signal that the DNACPR was unethical, whereas a failure to consult probably will.

The decision about which patients get CPR is ultimately a clinical decision, i.e. the doctor’s. And while the doctor might consider the patient’s values and preferences, these are not decisive. Doctors cannot be forced to provide treatment, including CPR, that they reasonably believe is futile. They must account for wider considerations – such as resources or harm to others – that may weigh more heavily than the patient’s desire for treatment. Part of the significance of consent is that it provides a power of veto. Yet, in the case of DNACPR, there is no power of veto. A patient can’t override a doctor’s decision to make them DNACPR, thereby apparently providing no role for consent on this side either.

This all underscores that, on the standard view, to consent, one must have options. In the case of DNACPR, the patient has no options. If the doctor makes the patient DNACPR and the patient happens to ‘consent’ (agree) they are still DNACPR; the ‘consent’ adds nothing. If the doctor makes the patient DNACPR and the patient doesn’t ‘consent’ (refuses); they have no power to force the doctor to provide it. If the outcome is always the same (DNACPR), ‘consent’ is not doing any work, so the language is inappropriate and ought to be dropped.

This position is reasonable. However, we think it misses something important.

A doctor has several moral grounds upon which to make a DNACPR decision: the thought that CPR would be a waste of resources; that (in the context of COVID) it would pointlessly place the medical professional in danger; or that it is not in the patient’s interests. That the patient consents to the absence of CPR is itself a validation of one ground. Discussion is not simply to inform, but to provide the patient an opportunity to agree with the doctor’s rationale providing additional weight and legitimacy.

Secondly, in asking for a patient’s consent, this involves the patient in her treatment in a way that mere consultation does not. In other words, consent has moral value even where it does not affect the outcome. Consider an analogy: Joan wants to ask her partner, Mary, to marry her. Knowing that Mary cares about certain traditions, she asks Mary’s parents for their blessing beforehand. She is going to pursue marriage with Mary whatever they say, and they know this; but there may still be moral value in requesting and receiving their blessing. The outcome is unchanged, but its moral character is different.

Yet if the patient can consent to the absence of treatment, can they also refuse? Well, yes; but in our case it will make no difference. Doesn’t this fact imply that seeking consent was a sham?

Refusal of consent also has moral power. Just as granting consent changes the moral face of the decision, so too does withholding it. In some cases, it will mean that the doctor must offer justifications for their decision other than the patient’s own good.

There is also power in being able to protest a decision that affects you, even if it doesn’t ultimately change the outcome. Offering consent means that the patient is given a chance to register their dissent. Sometimes, being able to express our disagreement to people in positions of authority is valuable, even if you can’t change their mind.

It is possible that calling this process ‘consent’ is overly misleading, and liable to give patients the mistaken impression that it is up to them which treatments they get. Yet we think it is important to insist that this is not mere consultation, important as that is. The process we outline involves asking the patient for a moral license to treat them in a particular way. Even if that license is refused, there is value in the asking.

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