Discourses governing biomedicine and biotechnology within neo-liberalist nations often revolve around issues of choice, consent, ethics and responsibility (Campbell, Charlesworth, Gillett, & Jones, 1997; Culver, & Gert, 1982; General Medical Council, 1998). Obtaining consent for medical treatment or research is seen as both an essential legal and moral right in many western countries. According to Faden and Beauchamp (1986), there are two distinct meanings, or senses, of informed consent, namely autonomous and/or effective. Autonomous informed consent is a term used in the moral sense, and is described by Faden and Beauchamp as “autonomous authorization”. That is "an autonomous action by a subject or patient that authorizes a professional either to involve the subject in research or to initiate a medical plan for the patient" (1986, p. 276). This meaning of informed consent implies substantial understanding, absence of control by others, intention and authorisation. Effective informed consent is a socio-legal concept, and is defined by Faden and Beauchamp as “a legally or institutionally effective (sometimes misleadingly called valid) authorisation from a patient or subject" (1986, p. 281). In this regard, the informed consent obtained needs to satisfy not only institutional policies, procedures, and cultural and professional practices, but legal standards as well.
By common definition, informed consent involves obtaining “…a patient's written consent to a surgical or medical procedure or other course of treatment, given after the physician has told the patient all of the potential benefits, risks, and alternatives involved...” (“Informed consent”, 2001). Yet this rather basic understanding was once not well defined, and it was not until legal decisions in relation to cases involving informed consent were applied to statutory laws that more strict and binding definitions finally came into being.27 However, it may still be argued that the development of standardised and comprehensive policies on informed consent owe their existence to the neo-liberalist developments of the late as the 1970s and 80s, a time when finally there was much more concerted focus on individual rights and responsibilities in health care at the consumer level. In recent years, at least three legal standards of informed consent have emerged from literature and been applied to modern health care settings in several countries, including New Zealand. These standards are conceptualised as follows:
The professional practice standard
This standard is set by the custom and practice of physicians in the medical community:
Informed consent...is the name for a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury may be incurred from a proposed course of treatment so that a patient, exercising ordinary care for his own welfare and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, can, in reaching a decision, intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits....(ZeBarth v. Swedish Hospital 1972, italics added).
As a ‘general principle of law’, this standard acknowledges the collective regulation of consent whilst at the same time suggesting that individual choice in individualised contexts is of paramount importance. It is therefore an example of the construction of informed consent as an individual property within a collective framework.
The reasonable person standard
This is a standard set by considering what a reasonable person in the patient's position would want to know in order to make a decision:
The test for determining whether a particular peril must be divulged is its materiality to the patient's decision.... A risk is thus material when a reasonable person, in what the physician knows
27
For instance, an early case, which had a profound effect on American law for several years, was heard by Justice Cardozo in 1914. Hearing a case where a person had been operated upon without consent, he concluded that: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages" (Schloendorff v Society of New York Hospital, 105 N.E. 92 (N.Y., 1914).
to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy (Canterbury v. Spence, 1972; italics added).
The key concept in this standard is clearly ‘reasonable person’, which is based upon the (subjective) judgements of the physician; it is therefore virtually impossible to define. In practice, the notion of a reasonable person as related above may therefore vary according to the physician’s interpretation of the patient’s position, which in effect, may only be a hypothetically decided ‘reasonable position’ based on little more than a set of medically orientated presumptions.
The subjective standard
This standard is based upon the notion that a patient should be informed of everything that all rational persons would want to know; i.e. each patient would want to know of every reasonable medical alternative that might affect his or her personal decision. This decision itself might rest upon religious or cultural beliefs, or even superstitions that would influence which alternative they would choose (Culver & Gert, 1982). This standard is also thought to apply to the disclosure of potential risks and benefits including mortality and morbidity rates for a proposed procedure in a hospital or a medical centre by their physician. There are clear legal overtones of compensation.
In all three of the legal standards there are a number of premises that are based on a particular ‘body politic’28 that is embedded in a ‘general principle of law’, as are notions of ‘a reasonable person’, and ‘rational persons’, which are based on modernist arguments about logical and judicious decision making. Subsequently, in the Code of Health and Disability Services Consumers’ Rights, 1996 (Right 7:7), it is a mentally competent ‘consumer’ of health care, who has the right to refuse any proposed treatment. Yet, if the ‘consumer’ of health care is deemed to have “diminished competence,” then a limited amount of individual choice is still acknowledged under the Code. If the ‘consumer’ is not competent to make an informed choice, then another person will be allowed to consent on their behalf.29
Where individual choice is transferred to parents because of the child’s age, a refusal may still be met by legal action because doctors are in command of resources and are therefore at an
28 I.e. that there are correspondences between society or the state and the individual human body. In the simplest
form, the body politic asserts that given the organic nature of the state (where a “natural” society is one which functions in a manner similar to the human body), then certain political structures or actions are necessarily appropriate.
29 It is quite possible for medical practitioners to be confronted by a patient or the parent of a child patient who for all intents and purposes is rational, but refuses a course of action in a fashion deemed by the physician to be questionable or irrational. Generally speaking, the capacity to make treatment decisions, including withholding or withdrawing treatment, is considered intact if the patient understands the clinical information presented, appreciates his/her situation, and is able to display reason in deliberating about their choices. If they are not, then their choice is seen as grounds for pursuing legal actions to secure the right to treat that person whether they comply or not.
advantage (Irwin & Jordan, 1987). Doctors as agents of the state make judgements about the competency of individuals to make decisions about their health care and the rationality of their decisions. The construction of the rational individual as someone who makes decisions that will maximise their self interests reflects neo-liberal economic thinking that tends to separate economics from social relations, thereby promoting an 'under-socialised account' of action that ‘atomises’ human behaviour even if, as Granovetter (1985) argues:
Actors do not behave or decide as atoms outside a social context, nor do they adhere slavishly to a script written for them by the particular intersection of social categories that they happen to occupy. Their attempts at purposive action are instead embedded in concrete, ongoing systems of social relations (p.487).
The resultant schism between a context of neo-liberalist individualism, the state sanctioned acts of a physician, and the socially embedded and relational individual may therefore be a profound one under certain circumstances, such as those surrounding the obtaining of informed consent from parents on behalf of their children.