Consenting to or Requesting Medical Care?

Written by Joseph Moore

Earlier this year, Alex Ruck Keene KC (Hon) delivered a Practical Ethics and Law Lecture at the Uehiro Centre on the topic of consent and autonomy-based arguments in medical ethics and law, to which the Centre’s Esther Braun responded. In the course of this enlightening discussion (and in private conversation since), Braun proposed that it is misleading to think about assisted dying, in particular, primarily in terms of consent. Talk of ‘consent’ paradigmatically evokes a situation in which one person proposes a course of action to which another agrees and thereby renders permissible. To apply this model to assisted dying, the medical practitioner would be proposing a course of action to a patient by which the patient would foreseeably die and to which the patient may then agree. But, Braun’s thought goes, many real cases in which assisted dying is either seriously considered or actually conducted are not like this. It is more typical that a patient proposes or decides that they should die and requests assistance in doing so.

This is not to say that patients who request assistance in dying do not also consent to the medical means to their dying. Nor is it to suggest that a patient’s capable and informed consent is any less important in cases of assisted dying than it is in other medical contexts. But the presence of patient request in typical cases of assisted dying is at least a noteworthy addition to the paradigm of medical consent. And it might also affect how we ought to think and talk about, and even legislate concerning, assisted dying. The structure of request may be interestingly different from the structure of consent; it may raise different ethical concerns or result in different ethical implications (which may in turn affect what laws we should have). As just one example, the typical presence of request might matter to arguments concerning the perceived expressive significance of permitting assisted dying in response to certain conditions, such as physical or mental disabilities. Even if it would be objectionable for a physician to propose assisted dying to a given patient, it is not clear that anything objectionable would be expressed by a physician’s instead responding to a patient’s request. So, if assisted dying is better understood using the model of request than that of consent, then perhaps permissions (legal or otherwise) for assisted dying are also unobjectionable in terms of their expressive significance.

I find Braun’s suggestion very intriguing, though I do not intend to take a stance here on whether a consent framework or a request framework (or some combination) is more appropriate for thinking about assisted dying. In fact, I am not writing to weigh in on the ethics or law concerning assisted dying at all. Rather, I am especially struck by the distinction and possible interactions between consent and request frameworks in general. Having opened the door to thinking about requests and their unique ethical significance in one medical context, I wonder whether the model of request is more applicable to more areas of medical practice than is often appreciated among medical ethicists.

Speaking only for myself, a request framework resonates much more strongly with my personal experiences of and feelings toward medical interactions than does a consent framework. My own patient history has included routine examinations, diagnostic tests, medical advice, vaccinations, medications, therapies, medical equipment and surgical procedures under local and general anaesthesia. In every case, I felt as if I was seeking and receiving help either to solve some health problem or to prevent others. And by wanting and seeking medical opinion or treatment in the first place, and making further decisions in consultation with clinicians, consent has usually felt like part of the background, a default presumption that could be withdrawn should something unacceptable occur or be proposed – but it probably will not. I have inevitably signed medical consent forms, but these have always felt to me like legal formalities, however necessary or prudent such formalities might be. Despite the apparent legal structure of these interactions, if you asked me about the deep or primary normative structure of my own interactions with medicine, I would say that they feel to me more like contexts of request and assistance than of offers and consent.

To be sure, this kind of experience with medicine may not be extremely representative. It may be indicative of my own good fortune and privileges. I have received largely preventive, elective and non-experimental medical care on an outpatient basis. A consent framework may be much more central to other medical contexts such as emergency medicine, inpatient care and experimental research. I am also highly educated, relatively competent to navigate medical institutions and make medical decisions, not in a vulnerable socioeconomic position and not a member of any group historically subject to discrimination or misconduct in medical contexts. For these and other reasons, I am probably more likely than most to feel a strong sense of personal agency with respect to my medical care and less likely to fear the violation of my autonomy. Perhaps consent frameworks are much more salient and significant to many other people with different personal and social backgrounds. I do not wish to minimise anyone else’s experiences of medicine or downplay the importance of medical consent.

But even so, I do not think my own relatively positive experiences with medicine are unique. What I experience as occasions primarily of request and only secondarily of consent are perfectly commonplace medical interactions. I have heard many people express similar sentiments when they are eager to be seen and heard by a clinician and to receive a prescription or try a new therapy or get some answers about what is ailing them. Many people want and ask for and, in some cases, demand medical care. And this kind of request framework is not only applicable to the experiences of the well-off either – at least not if, per Braun’s suggestion, it is central to the experience of those whose lives are bad enough, by their own lights, to request assistance in dying. Request may not be the only or predominant kind of ‘normative power’ involved in medical situations, but it is probably not a negligible one either.

I think the role and ethics of requests in medical contexts is worth greater philosophical exploration. The conditions for and ethical significance of consent is already much discussed in medical ethics and other areas of applied ethics. Consent frameworks are generally applied to all medical contexts by default. And there may be good backwards- and forwards-looking reasons for this. The need for informed consent is thought to derive rather immediately from the ethical principle of patient autonomy. We motivate concern for consent by thinking about historic cases of egregious violations of people’s autonomy, such as coercive or deceptive human experimentation. And the best practice of seeking informed medical consent might protect both patient and healthcare provider, and thus keep medical practices and institutions running smoothly. But requests and compliance with requests are no less tightly linked to concerns for autonomy. If contexts of request do possibly affect ethical considerations and implications over and above those of contexts of consent, then it is important to consider which if any, medical contexts are best understood primarily in terms of request rather than, or in addition to, consent. And if there are such contexts, then it will also be very important to investigate the conditions for and ethical significance of requests in their own right.