Laws are a familiar concept, and provide a basic social framework of right and wrong to which the majority adhere. Ethical theories may also be applied to all issues of uncertainty, including those not covered by laws or professional guidelines. They create a mechanism within which issues of moral uncertainty may be questioned and resolved (Jones 1994). One such area of moral dilemma is that of informed consent.
In it’s simplest terms, consent may be defined as giving permission:
"... in current usage consent is defined as a voluntary compliance, or as a permission. ‘I consent’ means ‘I freely agree to your proposal’, which is an explicit statement that my consent to a certain course of action has been sought and granted without any element of coercion." (Faulder 1985:32)
However, in recent years this definition of consent has been deemed inadequate. Consent may be regarded as invalid if the consenting individual does not know what they are consenting to. It is for this reason that the adjective ‘informed’ has been used to clarify it’s meaning (Tschudin 1989).
Faulder (1985) states that the medical profession is divided as to the exact meaning and purpose of informed consent. This is particularly true in the field of midwifery and obstetrics where this has recently become a key issue, despite the existence of a number of professional guidelines such as the Code of Professional Conduct (United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) 1992). This is in part due to the reluctance of many in the medical profession to adopt this new ideology. The age of informed consent brings with it enormous changes to the previously paternalistic health service. The Changing Childbirth Report (Department of Health 1993) with it’s ethos of woman centred care emphasises the need to empower clients by providing them with adequate information to make their own decisions. It is the right to know, and the right to say no. (Tschudin 1989)
"Informed consent is about the right to control our own destinies and to determine our own ends as far as humanly possible; it is about the right to make choices and the right to refuse consent; it is about the right of individuals to preserve their integrity and dignity whatever physical and mental deterioration they may suffer through ill health; it is about our duty always and in all circumstances to respect each other as fellow human beings and as persons." (Faulder 1985:2)
This essay will examine the legal, professional and ethical issues that affect, and are affected by informed consent. The writer will explore the subject as it relates to midwifery, using examples from the field and with reference to pertinent laws and professional guidelines.
Consent has been an issue in English law since the middle ages, however the first legal action concerning consent was not raised until 1767 when a patient brought an action against his doctors alleging that he had not consented to a particular treatment (Faulder 1985). More recently at the beginning of the century, consent forms before surgical procedures became statutory (Faulder 1985). Informed consent however, was not raised as a legal issue until 1957 in the case Bolam v. Friern Hospital Management Committee (cited by Faulder 1985).The case centred round the hospitals alleged failure to disclose risk to the patient who subsequently suffered a fracture. Although the court found in favour of the hospital in this case, the need for more information was highlighted. The court found that the hospital had provided acceptable information based on current standards of practice, however at that time the current standard practice was not to provide fully informed choice, which is now thought to be best practice. From this case, the Bolam test was devised, which examines a consensus of current practice for comparison.
As the law currently stands, a healthcare professional "... can be sued for battery (unlawful touching) and for negligence (the failure to meet approved professional standards or care)." (Faulder 1985:21-22). Treatment without consent may be regarded as battery, but legally this consent still does not have to be fully informed in the UK. The amount of information provided is at the discretion of the doctor, as demonstrated by the Sidaway v. the Board of Governors of Bethlhem Royal Hospital (1984, cited by Palmer 1993). Consent may be implied, verbal, or written, but accurate records must be kept by the professional as to the information given and the consent granted by the client (UKCC 1996).
Rogers states two notable exceptions whereby a patient can be treated without their consent . "If a person has a notifiable disease or is capable of causing one, or If a person has been detained under the provisions of the Mental Health Act (1983), the Mental Health Amendment Act (Scotland 1983) or the Mental Health Act (Northern Ireland 1961)" (1989:259). The latter exception has been utilised in a number of recent enforced caesarean section cases whereby the client has been deemed temporarily mentally incompetent due to her refusal to give consent to the operation. The most notable is that of Re MB  CA (cited by Migdal 1999). The judge deemed that although the client was behaving irrationally due to a needle phobia, this did not imply she was not competent to make her own decisions. If she were competent to consent, then her refusal was also a competent one. The rights of the mother to autonomy as a priority even when risking the life of her unborn child have also been clarified by these recent cases. (Caulfield 1999:118)
"An unborn child does not have a separate legal status from its mother and the court cannot take the status of the unborn child into consideration when determining whether the mother has the legal capacity to consent or refuse treatment" (Caulfield 1999:118)
The competence of children under the age of 16 to give informed consent has also been examined by the court. The case of Gillick v. West Norfolk & Wisbech area health authority in 1987 (cited by Rogers 1989) based on the hypothetical situation of a request for contraceptive pills by a child under 16, established a legal principle whereby a health professional could administer treatment against the wishes of the child’s parent. However, the parents approval must still be gained if the child is not deemed to be mentally competent to make their own decisions.
Many professional bodies and codes exist to dictate the behaviour of the medical staff that belong to their respective professions. Although many are not able to be used in a court of law, breaking these rules can lead to being struck off a professional register or any number of other sanctions that may be enforced that may result in legal action.
A registered midwife is personally and professionally accountable for their practice. This accountability extends to adhering to the Code of Professional Conduct (UKCC 1992), with clauses 5 and 7 being especially pertinent to the topic of informed consent. Clause 5 states that a midwife should :
"... work in an open and co-operative manner with patients, clients and their families, foster their independence and recognise and respect their involvement in the planning and delivery of care." (UKCC 1992:clause 5)
A strong emphasis is placed on honesty, respect and client autonomy. The healthcare professional may be guilty of coercion by deceit if all options are not disclosed to the client. This is discussed further in the Guidelines for professional practice (UKCC 1996) and The Midwife’s Code of Practice (UKCC 1994) where the need for adequate information provision is further stressed. This has been demonstrated in the recent concern regarding vitamin K administration to new-born babies. At East Surrey hospital, written consent is now required, with all options including refusal clearly explained (Surrey and Sussex Healthcare trust 1999). In the light of this information, very few parents decide to refuse vitamin K, and instead have a clear understanding of why it is offered after birth.
Clause 7 in the Code of Professional Conduct also highlights the importance of autonomy, and respect in a medical relationship: "[a midwife should] ... recognise and respect the uniqueness and dignity of each patient and client ..."(UKCC 1992). This demonstrates that the clients decisions should be respected, whether the outcome is to give or refuse consent. Although this may be ethically uncomfortable at times, it is the client’s ethics and morality that must be upheld rather than the professional’s.
The general public has more rights, and is more aware of these rights than ever before. The Patients Charter states "You have the right to have any proposed treatment, including any risks involved in that treatment and any alternatives, clearly explained to you before you decide whether to agree to it" (Department of Health 1999:4). The Changing Childbirth report (Department of Health 1993) also examines these rights from a specific pregnancy and childbirth perspective. It states that the client and her partner should be well informed, and involved in the planning of their care, and that their views and wishes should be respected by the professionals providing her care.
Informed consent was first introduced as an issue in medical ethics with the Nuremberg code (cited by Faulder 1985:131).This highlighted the need for voluntary consent with sufficient knowledge and comprehension to medical experimentation after the atrocities of medical experimentation in World War 2 concentration camps were discovered. Although this code was primarily concerned with the consent given before medical experimentation, the words that lie within it provide a foundation for informed consent in all areas, emphasising the need for freedom of choice based on knowledge sufficient to understand and decide. Previous to this, a paternalistic approach to medicine was adopted for those that could afford it, with high regard paid to the doctors opinion which was rarely if ever questioned.
Faulder (1985) cites five moral principles or rights upon which much ethical theory is loosely based ; autonomy, veracity, justice, beneficence and nonmaleficence. There is a very strong relationship between the principle of autonomy and consent (Jones 1994). One cannot exist without the other and together they allow self-determination.
"The body we inhabit is ours and ours alone to decide about, which does not mean that in coming to our decisions we do not consider, and more often than not take, the advice given to us by doctors" (Faulder 1985:24)
Veracity (truthfulness) holds the key to mutual trust and respect vital within any medical relationship, and justice "acknowledges the claim for patient autonomy by enabling it to be exercised" (Faulder 1985:26) and is well demonstrated by the legal aspects of consent. Nonmaleficence (To not do harm) is considered to be the positive opposite to beneficence. Beneficence (the duty to do good) is often cited by doctors as argument against informed consent, and it is often the medical profession who decide what is ‘in the best interests’ for the client. This ‘duty to do good’ explains why in British law, a doctor has the right to choose what information is provided before consent is given, as in the Sidaway case.
"When the consent of the patient or client is not sought for any treatment or intervention, that person'’ life is devalued. A paternalistic stance is taken; truth telling or honesty is compromised; trust is lost, individual freedom cannot be exercised: in other words, harm is done." (Tschudin 1989:339)
Two main schools of thought exist within modern medical ethics: Deontology, with an absolute duty to obey moral principles regardless of the consequences, and utilitarianism, which aims to do the greatest good for the greatest number of people (Jones 1994). Although on face value they appear similar, they work in direct opposition to one another. For example, in the instance of a client who refuses consent for antenatal testing, a deontologist will respect the clients autonomy and is be happy to continue with no testing as is becoming the norm in the midwifery profession. A utilitarian feels that the needs of the many outweigh the need of the individual, and as such would consider the possible effect on the fetus, the health service if the baby were to be born unwell, and society as a whole. They work on a balance between beneficence and nonmaleficence. This approach to medical ethics is favoured by many doctors (Faulder 1985).
Informed consent cannot be considered as a purely professional, legal, or ethical issue, and areas of uncertainty cannot be resolved by their independent use. However it is an extremely important issue in all three contexts. The midwifery profession has made advances in this field, but must continue to improve and extend this. Informed consent can no longer be selective or at the discretion of the paternalistic medical profession:
"... informed consent is a matter of ethical principle, not a legal formula or a courtesy which the doctor may or may not extend to his patients as he thinks fit and only to those he deems capable of acting upon it" (Faulder 1985:15)
Informed consent brings with it enormous responsibility. The general public as well as medical staff must be well educated in order to utilise this right. While this idea of informed choice is being introduced and improved, it may be open to abuse by all involved, it must therefore be open to input from all involved parties. The system that sets the policies up that promote choice should not be left entirely to the medical profession.
"medicine, and in particular medical ethics, is too important to leave to the doctors "(Faulder 1985:19)
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