Recent eLetters

Displaying 1-10 letters out of 466 published

  1. Proposed FGM 'compromise' illuminates medical complicity with non-therapeutic fee-paying surgery on infants.

    The JME's peer reviewers failed to press the clinical issues before publication of this flawed paper(1). The unoriginal idea of a 'ritual nick' performed by health professionals in a harm limitation approach to female genital mutilation (FGM) was proposed by the American Academy of Pediatrics back in 2010(2), who rapidly replaced their statement(3) in the face of worldwide condemnation(4) by the World Health Organisation, and the UK Royal Colleges of Obstetricians and Gynaecologists and Paediatrics and Child Health, amongst others.(5)

    Many mistakes slipped through: (i) the authors say the prevalence of FGM is stable, but provide figures showing it falling; (ii) they claim to medically recategorise all procedures (amateur, accidental or surgical) - matters beyond the scope of ethicists to judge; (iii) they state the impacts of surgery on male and female genitals can be assumed to be similar - they cannot; (iv) likewise, comparisons with adult surgery (including cosmetic female genital surgery) are not relevant to children; (v) there is no such thing as a "nick that heals completely" without leaving scar tissue; (vi) indeed, they later admit that "de minimus" procedures will involve "tissue being removed", the amount being difficult to regulate; (vii) controversially, they describe asymptomatic healthy children as "patients" thus generating an overweaning sense that doctors owe a duty of care regarding social matters; (viii) despite arguing for autonomy they did not suggest leaving parents with responsibility for performing the 'nick'; (ix) far from seriously considering the utilitarian calculus, they have no insight into the damage their proposal has on trust in the medical profession; (x) the concept of 'harm limitation' need not be applied(6) to justify changing the present global consensus, especially without evidence of rising harm in countries where FGM is illegal; (xi) they neglect entirely physicians' conflicted pecuniary interest when surgically altering healthy children's genitals, even if by request of loving parents for socio-cultural benefits; (xii) revealingly, they use a self-referential test for acceptability based on one gynaecologist's previous defence of male circumcision(7).

    Surgeons should respect the basic ethical principles of 'first of all, do no harm' and informed consent to irreversible surgery on the basis of medical necessity, particularly when performed on children. In the USA (but less so in Europe), there may presently remain a 'liberal' tolerance of male circumcision whose protection appears to be the article's real purpose. The weak arguments presented might lead to the opposite conclusion: far from condoning renamed non-therapeutic procedures (no doubt performed for a fee on defenceless girls), why not turn the spotlight onto medically sanctioned traditional 'ritual' practices on male infants?

    References (1) Arora KS, Jacobs AJ. J Med Ethics Published Online First: 22nd February 2016 doi:10.1136/ medethics-2014-102375 (2) American Academy of Pediatrics. Ritual genital cutting of female minors. Pediatrics 2010; 125: 1088-93. (3) American Academy of Pediatrics. Policy statement: ritual genital cutting of female minors. Pediatrics 2010; 126: 191. (4) MacReady N. AAP retracts statement on controversial practice. Lancet 2010; 376: 15. (5) Joint RCOG/RCPCH statement on the AAP policy statement on FGM. 12 May 2010 policy-statement-on-fgm/

    Conflict of Interest:

    I was involved in setting up an FGM clinic 1996, have publications on FGM, and received a fee for expert advice in the UK's first FGM trial 2014.

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  2. Utilitarianism in disguise will remain unconvincing to many

    The authors submit an ethical theory which rejects categorical conceptions of right and wrong, and adopts a scaled view of rightness, believing that it can depolarise the debate over the use of human embryonic stem cells (hESC) in medical research. I will argue that their proposal is unsuccessful.

    They argue that binary ethics must be forgone in preference of a non- binary understanding of rightness and wrongness: pro and contra reasons cannot be reduced to a binary moral conclusion, and a single pro or contra reason should ever rule out acts which go against it (and vice versa). If it were otherwise, an illegitimate "deontic leap" is made, and a binary conclusion (e.g. action X is right/wrong) is forced. Below I offer one major reason why this theory cannot do what the authors claim it can.

    Crucially, "right" and "wrong" remain (apparently) undefined, though they are essential to the debate. Those who oppose to the use of hESC often assume that embryocide is murder--a belief not easily trumped even by the forceful argument of medical research.1 So, if the means to an end are seen as absolutely wrong, the "non-binary" analysis will mean nothing to those whose ethic includes deontological considerations such as "do not kill".

    The authors do not seem to recognise this. Hence, they imply that "right" and "wrong" are synonyms of "pro" and "con" respectively; they assume a quantitative view of ethics. Thus, they reveal that their ethic is utilitarian. Regardless of whether utilitarianism is valid or not, it is na?ve to think that it could resolve a debate so bound up in religion and politics.2 Simply, it is a different ethical language to that of some of the major voices in the debate.

    Espinoza and Peterson's non-binary ethical theory falls short of its promise to depolarise the ethical debate. Its utilitarian design sidesteps other ethical considerations in order to redefine the terms of the debate, making it unconvincing to many.

    1. Meilaender, G. 2013. Bioethics: A Primer for Christians. Cambridge: Eerdmans 2. Green, R. M. 2008. "Embryo as epiphenomenon: some cultural, social and economic forces driving the stem cell debate". Journal of Medical Ethics, 34, pp 840-844.

    Conflict of Interest:

    None declared

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  3. There is still an unethical failure of democracy

    I feel a huge debt of gratitude towards the Journal of Medical Ethics for showing that it can be possible for outsiders to contribute to what can seem like a closed circle of people talking to themselves. Just to point out though that there is not an equality of democracy when the Journal of Medical Ethics and others are still largely unknown to the public; that work carried out in the name of 'the public good' is unknown until it trickles down into policies; that they still has a pay policy which bars many from reading most complete articles and therefore the opportunity of making their own authentic views heard. Is there maybe a fear of 'lowering the tone' of the more academic publications? Funding is an issue but does it need to cap the right to equality of access to debates about issues which effect society as a whole? For outsiders such as myself it can seem at times that specialist publications can act like some exotic society composed of those who can afford to pay, can speak the language of academia - to each other - and /or have free access through institutions from which most members of the public again are excluded.

    Conflict of Interest:

    None declared

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  4. More on Moore and moral status

    I look to clarify and reinforce my criticisms of the Moorean defence by Curtis and Vehmas of their proposition that all humans have an equal moral status that is higher than that of all non-human animals. In particular, I point to the relative scope for inventive new arguments against that proposition, and suggest that what misgivings we have about rejecting it are inadequate to make that type of strategy appropriate.


    In 'Having hands and moral status', I made two principal claims about Curtis and Vehmas' Moorean defence of the following proposition:1

    H>A: Humans have an equal moral status that is higher than the moral status of non-human animals.

    The "basic idea" of their Moorean strategy "is that our confidence in the truth of this proposition is greater than our confidence in the propositions that make up those philosophical views that entail that it is false, and that this is sufficient to justify rejecting those views and to continue to believe H>A."3 In other words, any deductive argument for a contrary proposition is really "no more than an invitation to compare plausibility:"4 if it is more plausible that a premise of that argument is false than that its conclusion is true, then "we should not be moved by the argument".1

    My first claim was that although their strategy is logically valid, "it is not powerful." My second, which I labelled "[m]y own view", was that "resort to the argument the authors make reflects too great a pessimism about the class of accounts which are unresponsive to PIDs", or profound intellectual disabilities. In a short rejoinder, Curtis and Vehmas explain why they believe I fail to establish those two claims. Since the authors misunderstand the points of both of them -- and given the significance of the issues our papers cover -- I look to clarify and reinforce those criticisms here.

    Valid, but not powerful

    Arguments 'for' propositions

    The first sense in which the Moorean strategy is "weak"3-- a word I never use -- is general to any issue to which it is applied. This is that "it does not give one any stronger reason than one had" to believe in the proposition defended: "all it does is point out that one's confidence in that position is a reason not to believe in others."1 In that particular sense, it is not an argument for H>A or for an external world: what disagreement we have about that label is in principle purely semantic.

    Curtis and Vehmas also note -- and read a great deal into -- my aside about ghosts: that a conviction in their reality is a reason to doubt attempts to explain them away, but not a reflexive reason to believe in them more. The comment was not a reductio of their argument, not least because I disagree with their assumption that using the Moorean strategy to defend one's ghostly beliefs against empirical attacks "is obviously not something that one would be justified in doing".3 Rather, my point was precisely that a Moorean argument which plays on how strongly you disbelieve a conclusion does not, as I use the label, count as an argument for your disbelief: "[h]aving confidence in the existence of ghosts is a pro tanto reason not to put stock by attempts to explain away ghostly appearances with optics or psychology, but it is not a reflexive reason to be confident in the existence of ghosts."1

    Out of the sceptical context

    The more important sense in which the Moorean strategy is "weak" is specific to its application to the issue of moral status. In my reply to Curtis and Vehmas' paper, I wrote that:

    Moore's original argument from his confidence he has hands to the existence of external things is unusually powerful because the sceptical arguments he opposes tend not to offer reasons to be confident about any alternatives: rather than suggesting just that we do not have hands, scepticism challenges our reasons to be confident about any of the possibilities; there need not be a change to the order of the options we have confidence about.
    The case of moral status is fundamentally different. Each plausible argument for an account which conflicts with all and only humans having full moral status is potentially capable of tipping the balance against that proposition. Such arguments are not sceptical reasons to doubt our confidence in everything: they advance opposition to the defended account relative to it.1

    The authors assert that I misconstrue Moore's argument, which, on the "common interpretation" which they ascribe to Lycan, "is not from [Moore's] confidence that he has hands to the existence of external things, but from his confidence that he knows he has hands to that he knows that external things exist".3 Lycan actually attributes both versions to Moore, with Curtis and Vehmas' reading being a development of what Moore first intended which makes "a rubber arrow" of an objection to any role played by common sense.4 Moreover, my claim that "[t]he case of moral status is fundamentally different"1 remains importantly true regardless of to which level the shared schema is applied.

    A typical sceptical argument asks us to imagine that we are, for example, brains in vats, fed artificial neural signals which generate a convincing illusion of reality. It then invites us to note that we cannot rule this possibility out, since all of our perceptual experiences would be as they are in actuality; deduces that we cannot know that this possibility is not actual; and concludes that, since we would not have hands were we brains in vats, we do not meet the standard for knowledge of whether we do have hands.

    The Moorean insight is that if it is more plausible that we know that we have hands than that it is possible that we are brains in vats, then the sceptical argument need not be threatening: rather than accepting its conclusion, we ought to -- or at least are free to -- deny that it is possible that we are brains in vats. What makes Moore's anti-sceptical position exceptionally secure, or his defensive strategy "unusually powerful",1 is how difficult it is to make it more credible that a sceptical possibility could be real: that we could be brains in vats or be plugged into the Matrix, or be duped by Cartesian demons or locked in vivid dreams.

    That security is not transferrable to questions of moral status. As a project, sophisticated opposition to H>A is still relatively immature. There is plausibly plenty of scope for inventive new arguments for positions with which H>A conflicts, whether drawing on unconsidered intuitions, metaethical innovations, zoological discoveries, or studies of psychological biases. Curtis and Vehmas note in their original paper how the best-known objections to H>A are "based upon a set of theoretical claims, such as the claim that moral status can depend only upon the possession of intrinsic properties," and that new arguments which drew on empirical facts would be "of an entirely different sort than those usually offered".2 The point is that there is ample latitude for such arguments to be developed or publicised, whereas the same is not nearly so plainly true of sceptical opposition to Moorean dogmatism. In this sense, the authors' deployment of the strategy is importantly different and significantly less enduringly effective.

    Reflecting too great a pessimism

    Denying H>A

    Recall that my original second claim was that "resort to the argument the authors make reflects too great a pessimism about the class of accounts which are unresponsive to PIDs."1 The Moorean strategy is one to adopt when none of the positions we can positively defend are anything but barely appealing: when the arguments for them are so uncompelling that we feel free to assume their conclusions are false. With this in mind, I used the final paragraph of my discussion to outline an account on which a being's moral status is proportionate to the "magnitude" of their interests, or more roughly to their capacity for satisfactions and dissatisfactions. Non-human animals -- or at least those of which we know, and then as far as we know them -- plausibly do have a smaller scope of interests than we as humans do.

    That account is "unresponsive to PIDs" in the sense that it does not make any person's moral status directly dependent on their cognitive capacities: that is, to borrow from Curtis and Vehmas, "those capacities to do with conceptual abilities, understanding, problem solving and rational decision-making."2 Instead, the entitlements, rights, or distributive heft of a person depend entirely and exclusively on their capacities for joys, disappointments, excitements and distresses: if PIDs are relevant to moral status, it is via those amplitudes only.

    In their restatement of my claim, Curtis and Vehmas replace "the class of accounts which are unresponsive to PIDs" with "the accounts available that purport to justify H>A", then finding my comments "puzzling" because on my proposal H>A is false.3 The conclusion they should instead have drawn is that I do not think an account needs to vindicate H>A to be compelling enough to make a struthious Moorean strategy inappropriate; it is in that sense that falling back on the strategy "reflects too great a pessimism".1 In particular, I do not think that accounts which satisfy H>A are unique in respecting what we find most troubling about the traditional criteria for moral status, nor that H>A is robust and self-evident enough to be aptly labelled "common sense".2

    What is troubling about those accounts of moral status which follow the liberal Lockean tradition -- making one's status contingent on autonomy, agency, or cognitive capacities -- is not in itself that they are sensitive to real differences within and across species, but rather that they fixate on distinctions which ought not at all to matter. Lacking cognitive capacities does not make a person any less inherently and importantly valuable and dignified: it does not justify inequalities of moral consideration. As Alastair Norcross put it, the fact that beings "can't be moral agents doesn't seem to be relevant to their status as moral patients: moral status "is not some kind of reward for moral agency."5 We agree, I think, in opposing "the view that such intrinsic psychological capacities as rationality and autonomy are requisites for claims of justice, a good quality of life, and the moral consideration of personhood",6 but we part soon after there.

    If one human is ever entitled to less than another, it ought to be because they have less use or need for what is at stake: that they lack some latitude to be satisfied or dissatisfied. That latitude, or that magnitude of interests, plausibly does matter to our dues or to our heft in distributive algorithms, and it plausibly is what creates moral gradations amongst known sentient beings.7, 8 It is not that we are innately unequal as beings or as humans, but rather that our interests are:9 that "a mayfly imago which needs not even feed will also not be fearing homophobia or pondering the frustration of its childhood dreams."1 Provided we keep this distinction in mind, H>A might if anything seem implausible in principle; short of that, it does not just seem "common sense".

    Non-human animals

    Curtis and Vehmas draw attention, however, to the account's implications for those humans and non-humans who share their sentient capacities for joys and disappointments.2, 3 Suppose, to take their example, that equality is true of humans with PIDs and dogs, and that we begin with the credible assumption that the moral status of a humans with PIDs exceeds -- perhaps significantly -- that of a dog. The standard argument is that we then face a trilemma: either acknowledge that dogs have greater moral status than we thought, being equal to that of humans with PIDs; accept instead that the status of humans with PIDs is lesser than assumed, being equal to that of dogs; or endorse, after all, something similar to H>A, and here defend it with a Moorean shift. I have, like many, no attraction to the second option. I will close this paper by both suggesting that the first is favourable to third and attempting to undermine any concerns.

    Many of our thoughts about the moral status of animals relative to humans with PIDs may, firstly, stem simply from a lack of knowledge of what most humans with PIDs are like. Eva Kittay, for example, describes her own daughter -- "diagnosed as having severe to profound retardation" -- as "enormously responsive, forming deep personal relationships with her family ... and friendly relations with her therapists and teachers," and with a discerning taste for "especially but not exclusively classical symphonic music".10 Kittay's daughter is not comparable to any non-human animal as most of us understand them: if there is a dog which matches her for sentience, then that dog is truly exceptional. Our misgivings may not be about genuinely equal cases.

    Secondly, we need to be clear that moral status need not even closely align with how a person should be treated: it is not a guide to whether we can "farm and eat the flesh" of people,2 or an indication of how much we value them. We stand in relations to humans with PIDs which we rarely if ever do with any non-human animals: we care deeply about them and about our relationships with them, and the facts that they matter so much to us, that we identify with them, and that they may depend on us give us perfectly permissible reasons to treat them exceptionally well. It is a fallacy that two beings with equal moral status need to be treated the same, and we should consider how much this accounts for the extent to which we find the first option challenging.

    Thirdly -- and finally -- recall the reasons I gave for thinking the Moorean strategy which Curtis and Vehmas proposed to be, albeit "valid", far from "powerful."1 We must be incredibly careful not to see that strategy as permitting us to be more confident about the truth of H>A: despite the titles of both their papers, it is not an argument for that proposition in the most conventional evidential sense. If H>A was ungrounded before, it remains as ungrounded now: it is a dialectical last resort. I suggest that we have greater reason to adopt an alternative view than we do to maintain H>A in the face of foundational difficulties "that we do not know how to overcome";2 H>A is, at least, nothing like our convictions that we really know that we have hands.


    1. Roberts AJ. Having hands and moral status: a reply to Curtis and Vehmas. J Med Ethics 2016;42:265 doi:10.1136/medethics-2015-103355.

    2. Curtis B, Vehmas S. A Moorean argument for the full moral status of those with profound intellectual disability. J Med Ethics 2016;42:41--5 doi:10.1136/medethics-2015-102938.

    3. Curtis B, Vehmas S. The Moorean argument for the full moral status of those with profound intellectual disability: a rejoinder to Roberts. J Med Ethics 2016;42:266--7 doi:10.1136/medethics-2016-103437.

    4. Lycan WG. Moore against the new skeptics. Philos Stud 2001;103:39+42 doi:10.1023/A:1010328721653.

    5. Norcross A. Puppies, pigs, and people: eating meat and marginal cases. Philosophical Perspectives 2004;18:243 doi:10.1111/j.1520-8583.2004.00027.x.

    6. Kittay EF. At the margins of moral personhood. Ethics 2005;116:100 doi:10.1086/454366.

    7. Singer P. Speciesism and moral status. Metaphilosophy 2009;40:567-81 doi:10.1111/j.1467-9973.2009.01608.x.

    8. DeGrazia D. Moral status as a matter of degree? South J Philos 2008;46:181-98 doi:10.1111/j.2041-6962.2008.tb00075.x.

    9. DeGrazia D. Equal consideration and unequal moral status. South J Philos 1993;31:17-31 doi:10.1111/j.2041-6962.1993.tb00667.x.

    10. Kittay EF. The personal is philosophical is political: a philosopher and mother of a cognitively disabled person sends notes from the battlefield. Metaphilosophy 2009;40:616 doi:10.1111/j.1467-9973.2009.01600.x.

    Conflict of Interest:

    None declared

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  5. Classification of Hyper-parenting

    Although genetic selection has a slew of issues involved with the process, what dictates hyper-parenting? If being a hyper-parent is the same for genetic selection as it is for having an organized schedule for one's child, at what point do you tier different levels of hyper- parenting? If everyone seems to be a hyper-parent in their own right, wouldn't the argument of "gene selector hyper-parents" become moot?

    Conflict of Interest:

    None declared

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  6. Defining Consent

    It seemed as if the paper never defined consent. Consent defined, giving permission for an action that affects the self under full disclosure of the action.

    Conflict of Interest:

    Taking a biomedical ethics course at the College of Charleston.

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  7. Opting in or Out

    Wales, (one of the nations of UK), has its' own devolved Health service. It has been decided to use an Opt out as well as Opt In policy during an introductory stage.. It is not perfect but there has been an attempt to introduce the policy ethically by posting a booklet to every household in Wales. There are links whereby people can obtain further information both via the internet or over the phone. Inevitably some will fall through the net, especially as a failure to declare an Opt Out decision will eventually lead to an assumption of Opt In and recorded on the organ/blood donation register.. A safeguard is included in that it has been made easy to also register a Change of Mind -for those who are aware of it. There have also been publicity campaigns via the media especially local TV and these need to be repeated.. One criticism is that although it is promoted as absolutely the individual's choice, the information is openly biased towards Opting In. for example the letter of acknowledgement of an Opt Out reminds people that they are more likely to need a donor than to donate their organs. That part is highlighted. Followed by what to do if the person changes their mind. The letter also instructs people to let their friends and relatives know of their decision. This part highlighted. Many will have nobody or not wish to tell anybody. It rather undermines trust that the individual's decision will definitely be honoured regardless of others' opinions.

    Conflict of Interest:

    No competing interests but choose to opt out.

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  8. Dr. Miller disagrees but does not overcome the facts and logic

    Dr. Miller cites the "professional integrity of physicians" and the uncertainty of whether additional interventions will restore a patient's desire to live.

    Does Dr. Miller's professional integrity include honesty, truthfulness, and sincerity when speaking to severely treatment-resistant patients? Particularly with respect to the efficacy of treatments that will provide rapid response and prolonged remission? Does that integrity extend to honestly communicating with these patients regarding scientific data on the likelihood, severity, and duration of relapse or recurrence?

    Or is Dr. Miller referring to the integrity that embodies a physician's personal ethics, morality and righteousness? Given Dr. Miller's emphasis of the uncertainty about whether additional interventions with the patient can improve quality of life, it appears the physician's beliefs should trump the ability of informed patients to decide.

    As Drs. Schuklenk and van de Vathorst stated, "if the pace of developments leading to therapeutic success in major depressive disorder is anything to go by, many people suffering from TRD would have reason to be sceptical about the odds of such a treatment regimen coming about within a timeframe that they would consider acceptable."

    Patients suffering from treatment-resistant major depression have likely undergone extensive long-term professional psychiatric care. "Typically they would have tried a fairly significant number of antidepressants, psychotherapy, probably electroconvulsive therapy, and they would have experienced the failure of these varied therapeutic approaches."

    Dr. Miller places considerable weight on the "uncertainty of whether additional interventions will restore a patient's desire to live." As Dr. Schuklenk points out, this argument unjustly ignores "the high burden that is paid by patients who happen to wait unsuccessfully for a successful treatment that may not come about at all or that may come about too late."

    Drs. Schuklenk and van de Vathorst provided sound recommendations in their article. Dr. Miller appears to personally disagree.

    Conflict of Interest:

    None declared

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  9. A calculus vs a developing guideline

    Bentham's hedonic, or felicific, calculus doesn't work, in practice, either, so the criticism of a calculus being difficult or not absolute applies equally to utilitarianism.

    The hedonic calculus allows conclusions with no benefit, or negative benefit, or positive pain for some. If the net calculation is positive for all, then the negative consequences for one or more individuals is subsumed by the greater good and, essentially, ignored. Worse, you can, in theory, have a negative consequence for one individual, such as torture, that seems acceptable because of the overall positive result.

    With transactional audit, every individual has an absolute requirement for some quantum of dignity.

    If the dignity of any one person is to be compromised, to maximise dignity, that is explicit in the calculation.

    A decision to act against the dignity of one or more, is then the least bad option - rather than, with utilitarianism, an the optimal decision.

    I think this is an important step forwards, ethically. As the article puts it: 'The starting point is that everyone's dignity counts. Everyone is a stakeholder in every transaction.'. Even after the decision, the importance of individual dignity remains.

    Wouldn't next step be, similar to law, to try to establish precedents? To invite the registration of specific decisions that used transactional analysis, so that they can be referred to, eventually, as a body of knowledge, a guide for future decisions?

    Abstract worked examples, or even concrete examples worked by one person, are less likely to be complete, satisfactory, and widely considerate of all stakeholders, and their dignity, than a recorded history of decisions made in similar circumstances, and building on precedent.

    Having a collection of such decisions as a benchmark would also make matters much easier, and, one hopes, fairer, when the time available decide is too short to carry out a full audit.

    The only specific problem I see, with the maximisation of dignity as an objective, is much the same as for utilitarianism. If 100 stakeholders are distant enough for their dignity to be impacted by 1/100th, then they have the equivalent stake in dignity as the patient. Fair enough, but, if you consider 20 million people, they only need a very tiny stake indeed to counter the interests of the patient.

    This seems wrong. Some cut-off distance, for stakeholders not in close proximity to the patient, seems necessary to mitigate the potential tyranny of the majority.

    Conflict of Interest:

    None declared

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  10. Montgomery: A clinician's view

    In their recent article Farrell and Brazier [1] assert that the recent decision in Montgomery v Lanarkshire Health Board [2] should not cause doctors any anxiety or concern. However the legal perspective on the case is perhaps not the same as the clinician's perspective. From the clinician's perspective there are reasonable concerns.

    Firstly, we should note that the damages in Montgomery amounted to approximately 5.25 million pounds [3] and were recovered in negligence as a result of the breach of the duty to adequately inform. An action for a breach of the GMC rules of conduct would not have resulted in an award of this size. Montgomery may not have changed the expected rules of conduct for clinicians, but in terms of enlarging the extent of liability for breach, the case has taken the velvet glove off the mailed fist.

    Secondly, the model underlying medical decision-making is now to firmly place the liability for ordinary consequences flowing from medical decision-making in the hands of the patient:

    "treats [patients], so far as possible, as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices."[4]

    The obligation on the doctor is, through the provision of information, to place the patient in the position to make the necessary choices. In order to achieve this outcome it is asserted that the Court has made a combination move in Montgomery:

    (a) there is a shift in the yardstick used to judge the standard of disclosure from the Bolam standard towards a modified objective patient standard; and

    (b) there a shift of view point from the perspective of the clinician towards the perspective of the patient.

    The first point has been well telegraphed by the Courts as Farrell and Brazier point out. However, the second point is not so clearly already embedded in clinical practice. Briefly, let us put aside the reasonable patient disclosure limb of the standard and focus only upon the particular patient disclosure limb of the test.[5] The particular patient disclosure limb disclosure requires disclosure where:

    (i) the doctor is aware that the particular patient would be likely to attach significance to the risk; or

    (ii) the doctor should reasonably be aware that the particular patient would be likely to attach significance to the risk.

    The question has changed from, what can and should the clinician deliver to what does this patient need to know? [6]

    "The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient."[7]

    Conforming to such a particularist legal rule is hard in practice because it requires the clinician to have some insight into the thoughts of each patient. Thoughts that the patient need not express until the court hearing for breach of the duty of care, as the facts of Montgomery demonstrate.

    Given that the mind of the patient is not necessarily in full purview to the clinician the question is what does the clinician have to do in practice in the particular case in order to prove valid consent? Simply answering the patient's questions is no longer enough. A signed consent form is no longer enough. What would be enough?

    Developing and then embedding a process approach to consent with adequate documentation to avoid liability is a new demand on already overstretched resources. The Court recognized that more clinical time will be needed in order to secure adequate consent.[8] But this will have to be costed and delivered.

    The decision in Montgomery leaves process failures to be challenged in public law rather than in tort.[9] Given the differences between judicial review actions and negligence actions, the effect is likely to be to push liability for process failures downstream onto clinicians.

    Thirdly, there is the question of whether a patient can be told too much? After the fact, the patient can complain that there was something could have been known and that were not told that adversely affected their judgement sufficiently to justify an action in negligence. But, by analogy, can the patient also complain about facts that they were told but should not have been told? Would such a positive affront to the autonomy of the patient be actionable?

    In conclusion, there are things in the judgement that reasonably give clinicians pause for thought.

    [1] Farrell AM, Brazier M. Not so new directions in the law of consent? Examining Montgomery v Lanarkshire Health Board. J Med Ethics 2015 (online first) doi:10.1136/medethics-2015-102861

    [2]Montgomery v Lanarkshire Health Board[2015] UKSC 11

    [3] BBC News. Nadine Montgomery wins ?5 m from NHS Lanarkshire over brain damage to her son. 11 Mar 2015. 03/01/2016)

    [4]Montgomery v Lanarkshire Health Board[2015] UKSC 11 at para 81.

    [5]Montgomery v Lanarkshire Health Board[2015] UKSC 11 at para 87.

    [6] Heywood R. R.I.P. Sidaway: patient-oriented disclosure-a standard worth waiting for? Montgomery v Lanarkshire Health Board[2015] UKSC 11. Med Law Rev 2015;23(3):455-66.

    [7]Montgomery v Lanarkshire Health Board[2015] UKSC 11 at para 89.

    [8]Montgomery v Lanarkshire Health Board[2015] UKSC 11 at para 93.

    [9]Montgomery v Lanarkshire Health Board[2015] UKSC 11 at para 75.

    Conflict of Interest:

    None declared

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