consent must be genuine, i.e. unforced. I ask you to give me your autograph and
yo usign the bottom of a blank sheet of paper. I s ubseq uently type a deed of gift on
the paper transferring all your worldly wealth to me. No one would suppose that
this constituted a genuine agreement. You did not realise that you were agreeing to
anything, let alone that yo uwere agreeing to be pa uperised. Likewise, a patient
must understand the nature of the treatment proposed if any verbal or written
declarations are to count as genuine consent. What counts as `understanding the
nature of the treatment' is more complicated, but courts have held, quite reason-
ably, that it involves more than simply being told what will be done. In particular, it
also involves having some understanding of the likely consequences ± both good
and bad ± and of how likely they are.
Consent to treatment is problematic for critically ill patients for two reasons.
First, because their condition may make it hard for them to express consent, or it
may mean that they are unable to give consent at all because they are uncon-
scious, or no longer capable of full consent ± see section 10.8.1); or secondly,
because the difficulty of deciding on an appropriate course of treatment may not
be wholly a matter of medical science. For example, it can happen that a particular
procedure becomes less and less effective each time it is performed and the benefit
to the patient declines correspondingly. This can be especially true of palliative or
symptomatic care which does nothing to arrest an underlying condition. At some
stage a judgement must be made that the benefits are now too negligible or too
heavily outweighed by the discomfort of the treatment or its possible side effects.
Equally, a treatment may be uncertain and, although the degree of uncertainty may
be a matter of medical science, the question of whether the risk is worth taking is
not. For a patient with advanced cancer there can be a difficult decision of whether
an outside chance of aggressive chemotherapy securing a remission is worth the
severe discomfort the treatment will certainly cause. Some might think that, when
it is a matter of life or death, any chance, however remote, is worth taking. Others,
who might be more temperamentally risk-averse, could see it as a gamble not
worth taking.
10.7.1 Why does consent matter?
The job of the therapeutic team is to do their best for the patient, given the
resources at their disposal. Indeed, this is more than their job; it is their legal and
moral duty once the patient has been accepted as a patient. And it is hard to see
how the patient, unless in some way deranged, can object to this. After all, is it not
one of our informal tests for how sensible and rational someone is that they should
want the best for themselves? Why should we also need their consent? There are
four major reasons why we do.
The first is related to the issue raised at the end of the previous section and has
to do with expertise and the authority that goes with it. Most would agree that,
unusual exceptions notwithstanding, medically trained staff are more likely to
know what the likely prognosis is of a given intervention or treatment. That
knowledge gives them an authority which may be unfashionable but is nonetheless
real for that. However, judgements to do with how much risk is worth taking or
212 Nursing Law and Ethics