Why is the Scottish Govt targeting women for egg donation?

[ProfessorDavey]

Is this the law still, or just your opinion? If it's the law, then I think it justifies NS's comment (quoted above) unless you are going to nit pick the distinction between "not showing they don't understand" and "showing they do understand".

Yes it is the law, which is why consent can always be withdrawn and therefore consent should always be revisited regardless of whether a form was signed at some point previously. So in most cases this would require nothing more than the practitioner saying 'are you still happy to proceed?' but if the practitioner became aware of clear misunderstanding they should revisit the information. Were they not to do so then they might be challenged on negligence - this typically happens where a person with capacity to consent claims that the information provided was inadequate, misleading or just plain wrong and that had that not been the case they wouldn't have consented.

[ProfessorDavey]

Refusing to engage is not the same as failing to understand.

But the test (both legally and ethically) is the ability to understand - if someone has that ability and fails to actually understand, unless that is due to faulty or confusing information, then that would be a choice, as they had the ability to understand but for whatever reason chose not to - most likely a refusal to engage or a mindset which prioritises other values in terms of decision-making over the information provided.

None of that means there isn't valid consent.

This from a key element of the case law on the matter:

"The general rule of English law, whatever the context, is that the test of capacity is the ability (whether or not one chooses to exercise it) to understand the nature and quality of the transaction."

Justice Munby. Re MM (an adult) [2007] EWHC 2003 (Fam)

[ProfessorDavey]

And as for "testing understanding" I am pretty sure a good doctor would do that, informally. I have been fortunate not to be in the situation, but I would hope that, if I was about to give consent for a risky procedure the doctor would explain the risks and ask if I understood. If my responses indicate in any way that I didn't understand, I would hope they would try to rectify the situation.

Really - whenever we take medicines there is often the likelihood of side effects, some of which are likely to be very serious.

The information about those side effects is typically in the patient information sheet in the pack you pick up with a prescription from the pharmacist. I think it is extremely rare for a GP to talk through all those side effects during consultation and when writing the prescription. The approach is that the GP will make a broad assessment of your ability to understand on the basis of the discussion in the consultation and knows that the prescription will contain an information sheet that the patient should be able to understand. Whether the patient actually bothers to even read the sheet is a matter for the patient and a failure to read the sheet would not suggest there was no consent to take the prescription.

[jeremyp]

I'm not questioning the top level issue of whether what the Scottish Government is acting lawfully.

My point was a much narrower one - specifically whether it is legal (or ethical) for a medical procedure to proceed on the basis of consent if the medical practitioner has not been able to demonstrate that the person receiving the procedure has actually understood consequences etc. And the answer is that it would be - actually both legally (which is an objective test) and I would suggest that although ethical opinion is more subjective the position on consent is pretty settled. So in both cases the test is that the individual has the ability to understand, whether or not the individual actually understands is not required for capacity to consent.

I'm still not sure why you think this is relevant to the subject.

[ProfessorDavey]

I'm still not sure why you think this is relevant to the subject.

Because NS implied that anyone who is considering donating eggs or sperm must show that they understand the risks involved. That isn't the legal threshold for any consent process, nor is it consistent with the orthodoxy of ethical thinking on capacity to consent.

So either NS is asking for a different threshold legally and ethically for this situation than would apply for blood donation or donation of a kidney, as examples, or he simply doesn't understand what the established ethical position is on consent nor the legal thresholds required. I suspect the latter as he seems to know very little about the topic whereas this is a subject that I know a lot about and teach at postgraduate level.

[jeremyp]

Because NS implied that anyone who is considering donating eggs or sperm must show that they understand the risks involved.

Do you think it's ethical not to apprise people of the risks involved in any elective medical procedure?

[ProfessorDavey]

Do you think it's ethical not to apprise people of the risks involved in any elective medical procedure?

That would involve not providing the relevant information and of course it would be both unethical and unlawful to fail to provide information that is adequate and sufficient to allow an individual to make a decision. Indeed if the information was not provided then consent would not be valid and any intervention could be an assault or certainly negligence.

But that isn't what we are talking about - we aren't discussing what information needs to be provided to the individual, we are discussing the individual's response to that information and provided that the information has the ability to understand that information whether or how they choose to use it is up to them and that doesn't compromise the validity of consent provided that the individual has the capacity to consent (based on ability to understand), that adequate and sufficient information has been provided and that the decision is taken voluntarily without undue pressure.

JP - do you always read the information sheet from start to finish before taking a prescription or over-the-counter medicine? If not (and I suspect many if not most people don't) that doesn't mean your decision to pop that tablet into your mouth made on the basis of valid consent - it means that you have chosen to ignore that information when you make that decision even though you have the ability to understand the information sheet and have been provided with that information in the tablet box.

[jeremyp]

JP - do you always read the information sheet from start to finish before taking a prescription or over-the-counter medicine? If not (and I suspect many if not most people don't) that doesn't mean your decision to pop that tablet into your mouth made on the basis of valid consent - it means that you have chosen to ignore that information when you make that decision even though you have the ability to understand the information sheet and have been provided with that information in the tablet box.

If I was being prescribed medicine by my doctor, I would expect them to tell me what the risks are. If I don't have the information, I can't give informed consent.

[ProfessorDavey]

If I was being prescribed medicine by my doctor, I would expect them to tell me what the risks are. If I don't have the information, I can't give informed consent.

Have you ever received a prescription from your GP Jeremy?

In my experience the GP will tell you what the purpose of the prescription is in relation to the condition that you are suffering from, will check for any significant contraindications which might mean you couldn't take this particular medication and at best might mention the most significant side effects, particularly if they might require a bit of lifestyle change (e.g. don't drink, don't drive, don't operate machinery etc).

I have never know a GP to go through all the potential side effects and in most cases this would be so lengthy that you'd run out of consultation time.

In reality a GP is unlikely to know all the side effects of every drug (that isn't their job), so were you to ask him or her they would likely simply tell you that all the details are in the sheet in the box.

But again you are missing the point - a typical aspect of consent is that the person should have the opportunity to ask further questions (even if the answer will be 'read the leaflet'), but it doesn't negate valid consent if the person does not have further questions, nor if they chose not to acquaint themselves with all the details on the leaflet in the box - that is their choice. Provided the person has the ability to understand the information in the leaflet and has been provided with that information (which would be considered adequate and sufficient in legal terms) then the threshold for valid consent will be met presuming that the person makes the decision of their own free will, in other words voluntarily.

[jeremyp]

Have you ever received a prescription from your GP Jeremy?

In my experience the GP will tell you what the purpose of the prescription is in relation to the condition that you are suffering from, will check for any significant contraindications which might mean you couldn't take this particular medication and at best might mention the most significant side effects, particularly if they might require a bit of lifestyle change (e.g. don't drink, don't drive, don't operate machinery etc).

I have never know a GP to go through all the potential side effects and in most cases this would be so lengthy that you'd run out of consultation time.

In reality a GP is unlikely to know all the side effects of every drug (that isn't their job), so were you to ask him or her they would likely simply tell you that all the details are in the sheet in the box.

But again you are missing the point - a typical aspect of consent is that the person should have the opportunity to ask further questions (even if the answer will be 'read the leaflet'), but it doesn't negate valid consent if the person does not have further questions, nor if they chose not to acquaint themselves with all the details on the leaflet in the box - that is their choice. Provided the person has the ability to understand the information in the leaflet and has been provided with that information (which would be considered adequate and sufficient in legal terms) then the threshold for valid consent will be met presuming that the person makes the decision of their own free will, in other words voluntarily.

You're still talking about what is legal, not what is right.