This post has been contributed by Professor Charles Lawson, Dr Edwin Bikundo, Todd Berry, Jo-anne Todd and Associate Professor Laurie Grealish

Our research team is grappling with new ways of dealing with consent. This is becoming more problematic as healthcare becomes more sophisticated and caters to increasing numbers of patients, especially in the hospital setting. In healthcare a valid consent transforms an unsanctioned act that would otherwise be criminal (an action or omission that is an offence at law such as battery, assault or false imprisonment) or negligent (a failure to take reasonable care to avoid causing injury or loss) into a permitted act and is required for all touchings. Where a patient lacks competence and capacity, however, the patient doesn’t make that consent. The legality framing of consent in healthcare as traditional legal thresholds and formalities is, in modern institutional settings, really a means to avoid legal liabilities. We are investigating a more credible account that posits a “sovereignty” (the existence and extent of an autonomous capacity to act independently and without outside interference) approach and shows that addressing the consent issues with more law, more process and procedure and without addressing the legality assumptions will always be flawed. Our research objective is to develop stakeholder group co-designed decision-making models for testing in institutional healthcare settings like hospitals and nursing homes.

It is trite to say that the mission of healthcare is better health outcomes that is achieved through a legality-based order imposed by government (the parliament and executive) and supervised through the courts. There are legality assumptions for consent in this dominant legality paradigm in Australia, except in cases of emergency or necessity, that must be addressed and accommodated in finding better outcomes for meaningful consent. The High Court in Rogers v Whitaker (1992) 175 CLR 479 illustrates these assumptions. There the plaintiff suffered from a right eye injury causing major loss of sight that was treated with surgery to that eye and was advised that surgery to the right eye might improve sight in that eye. Following surgery, the right eye did not improve, and the healthy left eye developed a condition known as sympathetic ophthalmia so that the plaintiff lost all sight in the left eye and became effectively blind. The plaintiff sued in negligence asserting, in part, that the defendant ophthalmic surgeon had failed to warn of the sympathetic ophthalmia in the left eye. The plaintiff was successful at trial and on appeal to the Court of Appeal of New South Wales. On appeal to the High Court the sole issue was the standard of care and skill expected of an ordinary skilled person exercising and professing to have that special skill (here the skill of an ophthalmic surgeon specializing in corneal and anterior segment surgery) and manifest as a failure to properly inform the plaintiff about the danger of sympathetic ophthalmia as a possible result of the surgical procedure. In deciding there was negligence the High Court revealed three core legality assumptions at work: (1) The co-existence of the courts overseeing legal standards and healthcare professionals providing treatment and care are a system for producing a healthy citizenry with the courts speaking authoritatively to the healthcare professionals. While the courts are speaking authoritatively to the healthcare professionals, this is only ever at the margins because it is only in exceptional instances that the courts intervene and otherwise the healthcare professionals are delivering (deciding) treatment and care without court intervention within a system of health treatment and care; (2) The courts and healthcare professionals have a shared interest in both wanting to avoid treatment and care outcomes that harm the patients. This is a trade-off between healthcare professionals giving up some of their authority and the courts asserting broader social values (such as the right of the individual that is a value in a democracy) with the benefit for healthcare professionals being a social license to operate (deciding) and fewer treatment and care outcomes that harm the patients; and, (3) By the courts speaking authoritatively to healthcare professionals about their treatment and care practices (deciding) it is assumed that healthcare professionals will respond by adopting practices that self-regulate according to those court spoken standards. The court is not addressing the treatment and care per se but rather the exercise of the discretions about treatment and care.

The result of these assumptions is that there is a legality-based constraint on healthcare professionals delivering treatment and care and, most importantly for our analysis, a shift in the gaze away from a satisfactory account of the relationship between healthcare professionals delivering treatment and care and the patients receiving appropriate treatment and care. Instead, the gaze is on the narrow legal formalities of process and procedure about the actions of healthcare professionals delivering treatment and care, and self-regulating so as to avoid the institutions of the court authoritatively declaring law. All these assume that harms to patients can be justified in some circumstances (where health outcomes are valued) and that legality can be specified in advance with appropriate enforcement to limit transgressions and that more law will necessarily promote better self-regulated delivery of treatment and care. Contextualised for consent this means more prescriptive procedures and processes for gaining appropriate consent so that healthcare professionals can avoid the court’s scrutiny and better deliver healthier communities: more training of healthcare professionals, more governance of healthcare professionals, rhetoric of patient centred care, better communications between healthcare professionals and the community, more diversity among healthcare professionals, and so on. These all further focus the gaze on legal formalities of process and procedure and away from patients receiving appropriate treatment and care.

The problem, however, is that healthcare professionals derive their authority from the law and at the same time have the authority through determining competence and capacity to derogate from the law. This is made yet more problematic because healthcare professionals delivering treatment and care involves many, many engagements with the patients, from the trivial to the most consequential, and each engagement requires consent. In effect, the healthcare professionals will make choices about consent for delivering treatment and care according to the scheme that a court would apply, with the healthcare professionals determining incompetence and incapacity that will only be apparent when a patient resists. And when the patient resists, it is then the healthcare professional’s clinical judgement in the context of the specific circumstances and decisions to determine the patient’s capacity, and consequently their competence. Is there a better account?

Our starting point is that healthcare professionals make choices about consent for delivering treatment and care under the spectre of after-the-event supervision by a court, with the healthcare professionals determining incompetence and incapacity that will mostly only be apparent when a patient resists. In this account, the potential assault, battery, false imprisonment and negligence (all actual coercion and violence to the resisting patient but lawful with consent) are incidental to the healthcare professionals delivering treatment and care, and rationalised by the assumptions about legality cast in favour of the healthcare professionals. The role of consent is: (1) to validate the liberal ideal of autonomy against assault, battery, false imprisonment and reasonably foreseeable harm (negligence) by empowering the apparent autonomy of the patient to choose, and by acceding (consenting) thus suspending the liberal ideal of autonomy, and (2) where the patient is determined to lack competence and capacity, to suspend that liberal ideal of autonomy on the basis that they would (of course) have consented had they had sufficient competence and capacity. This is the “state of exception” where the authority of the healthcare professionals is both lawful and beyond the law, and it is the healthcare professional that decides.

This is the power over human bodies, or “biopolitics”, where the state of exception is the zone between an interior orderly political and legal community and the exterior threats to disrupting that order. And here the usual features of law and discretion are neither within nor without the law as the law is in force but not actually applied. According to this account, the patient is subjected to the state of exception because of their consent or their incompetence and incapacity. The healthcare professional maintains the interior orderly political and legal community and avoids the threats to disrupting that order through the obfuscation of the rule of law (consent by acceding) because the performance of consent places the patient in the border between the interior and exterior and subject to the decisions of the healthcare professional – the patient is in a state of bare life. The liberal legal order is suspended and there is a fundamental challenge to the rhetoric of patient centred care, and the broader liberal ideals of autonomy and choice.

Our research challenge is to re-orient this state of exception and develop a toolbox of decision-making models through stakeholder group co-design and testing. The proposed tools will need to engage the institutional context (laws and policies) that address the identified elements of good decision making in fact, law, discretion and correct and preferable decisions, as well as engaging the institutional culture of consenting.