The demands and boundaries of consent for medical treatment in the National Health Service

It is widely accepted that consent is underpinned by the principle of respect for autonomy. Accordingly, doctors are instructed to obtain consent for medical treatment through decision-making in partnership with patients. Yet, decision-making involves preceding judgments about the treatment-options that should be offered, and sometimes conflicting considerations of the doctor’s duty to care for the patient. This thesis engages Amartya Sen’s capability approach as a theoretical tool to understand the idea of consent and propose a model that responds to the broader context. Central to the capability approach is the argument that a person’s well-being is achieved through her freedom to ‘be and do’ what she has reason to value. In the context of health, this can be understood as securing a person’s capability to achieve medical treatment in line with her agency; that is, her unique health-goals. This capability has two aspects: treatments that are available to a person, as the means to her goals; and her opportunities to achieve or reject these treatments. The capability approach supplies critical conceptual clarity and distinction of these two aspects, and it enables the articulation a clear model of the wider demands and boundaries of consent. Key to attaining this model is Sen’s focus on public reason: a way of interpreting the underpinning principles that would be acceptable to a reasonable person. As per John Rawls, superior courts are fora of public reasoning. This thesis analyses significant, consent-focused case law within a capabilities framework to expose evolving ideas of justice that culminate in the Supreme Court’s decision in Montgomery. Traditionally, judges relied on the private reasoning of doctors for both aspects of a patient’s capability to achieve treatment; then, there is shift to public reason. Yet, reliance persists on medical professionalism, and Montgomery illuminates judicial strategy as well as reveals ongoing challenges.