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

摘要

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.