Our society places great importance on a citizen's right of self-determination. One of the most obvious opportunities to exercise autonomy is when a person is able to make an informed choice concerning their medical treatment.
The legal doctrine of consent ensures that people are put into a position where they can make an informed choice. Choices can be informed only if the chooser has a clear and accurate understanding of what the ‘procedure’ entails, together with its benefits, risks, complications and alternatives.
In a bungee jump, the ‘procedure’ entails the opposition of gravity by an elastic band. The benefit is that the jumper may have enjoyed the experience. The risks include a rebound into the bridge from which he was suspended, or hitting the ground. The complications are, therefore, self-evident. Given the simplicity of both the procedure and its potential outcomes, there is unlikely to be a significant gap in the knowledge base between the jumper and the purveyor of the jump.
The bungee jump can be distinguished from the consent for surgery. The relationship between jumper and purveyor is quite different than between patient and surgeon. Additionally, there is significant inequality between the knowledge of the patient and surgeon, and the matters to be communicated and understood by the patient are infinitely more complex.
Unlike the jumper, the patient who consults a surgeon acquired their problem involuntarily, and it is one that may fundamentally affect their health. The problem may be serious, possibly endangering life. If he or she wishes to remain healthy, the patient must, therefore, acquiesce to surgery – there is effectively no choice in the matter; however, the jumper can simply walk away, and decide upon an alternative entertainment. The inevitability of the need for treatment gives the surgeon a degree of control over the patient far removed from that enjoyed by a purveyor of bungee jumps, yet Fong and colleagues try and persuade us that we should act in the manner of the latter.
I am honestly unable to decide whether Fong and colleagues are simply pulling my leg. The point of my article was to point out that good consent is simply good medicine, and that the lawyers are merely peripheral players. Litigation is clearly deeply unpleasant, and something that all surgeons wish to avoid. But litigation is still only a sideshow; our main purpose is to treat our patients properly, and the law provides some, albeit incomplete, guidance on how this may be achieved.
The reader will decide whether I have over-reacted to Fong et al. If they were suggesting that it is acceptable merely to place a conditional offer in front of the patient in a take-it-or-leave-it manner, then I would strongly disagree. This is incompatible with our moral duty to do the best for our patients.