Intended for healthcare professionals


UK law on consent finally embraces the prudent patient standard

BMJ 2015; 350 doi: (Published 28 May 2015) Cite this as: BMJ 2015;350:h2877

Duty of Care is not modified by Informed Consent: the elephant in this particular room is that Informed Consent is fundamentally irreconcilable with Duty of Care

'Duty of Care', was used by Mair A Crouch in this series of rapid responses (17 June), quoting from an earlier response by Jay Ilangaratne. When clinicians use the phrase Duty of Care, it often seems to mean something similar to the phrase 'acting in the patient's best interests', and both seem to be 'ethical concepts' which are linked to the idea of 'best outcomes'. While the concept of 'duty of care' remains valid for minors or adults who lack mental capacity, the concept cannot be reconciled with the legal position that for mentally-capable adults 'the rule is informed consent'.

Rathbone has pointed out (ref 1) that 'the term 'best interests' should be avoided outside the context of considerations of mental capacity. Invoking such a concept in patients who do not lack capacity would put doctors at risk of accusations of paternalism and breach of autonomy which are viewed unfavourably by the law.'

Justice Sir Mark Hedley explained to The Independent (see ref 2) that if a mentally-capable person has taken an overdose in an attempt to commit suicide, the law does not authorise doctors to treat the patient against the patient's refusal.

English law has settled on patient self-determination, and it allows for patients to 'make 'poor', or even self-destructive, decisions': this is something very difficult for doctors and nurses, whose role is 'to care', to easily come to terms with. But the law has settled on patient self-determination: and philosophical debate about 'how autonomous a patient really is' is unnecessary, because the law uses a simpler real-world version of self-determination (I discuss this in ref 3).

So the phrase 'Duty of Care' should be replaced by 'Duty to Offer Care' - I am aware of how awkward this makes certain aspects of the working life of clinicians, but the clarity of decision-maker inherent in Informed Consent is to my mind better than irresolvable disputes about the meaning of 'the best outcome'. Informed Consent leaves unchanged the requirements for competence during the application of an accepted treatment, ‘fairness’ in the offering of treatments, etc: but it removes concepts such as ‘patients must make decisions in their own best interests [and if they don’t do that, then clinicians need not respect the patient’s decision]’.

I readily admit, that while I find the concept of 'mental capacity followed by informed consent' satisfactory in terms of logic, I am very unclear about how mental incapacity, unless 'it is blindingly obvious', is to be established ! I am also not claiming that Informed Consent leads to 'better overall outcomes' than 'paternalism' - I don't know how outcomes compare or indeed could be objectively assessed as 'better or worse': but I am claiming that informed consent is 'conceptually clear', while the alternatives are not.

Mike Stone contact

Ref 1

Ref 2

Ref 3

Competing interests: No competing interests

23 June 2015
Michael H Stone
Retired Non Clinical
None Private Individual
Coventry CV2 4HN