It is vital to have a proper understanding of society and history as well as the philosophically problematic concept of the ‘autonomous individual’ for the practising psychiatrist to grasp the concept of consent and its political and moral evolution which has obvious implications in medical ethics, writes Amit Ranjan Basu
The word consent is understood to give permission or reach agreement for some activity to occur. From this broad perspective, it has been an integral part of our socio-political life than what we see in the contemporary world as a formal apparatus as research participation forms or medical regulations. It can be seen in the discourses of political theory, applied philosophy and social theory. Though some contemporary scholars have seen consent to be a recent phenomena, the enunciation of this idea can be traced in the discourses from our ancient past. This of course does not mean that what we understand today as consent is a simple, linear continuation from our past. Rather it would be wise to point out at the beginning that, creating (or constructing) a past of consent, arises from the desire to know in the present context. To make a meaning of our present situation we are deliberately curving out a past for a better understanding.
Before we get into details, it would be helpful to know that, consent can be divided into two types: originating and permissive. In permissive consent, consent acts as a waiver, ensuring that an act that would otherwise commit some wrong does not do so. For instance, when operating upon an ill but competent patient, the surgeon‘s actions can count as ethically and legally benign (instead of being invasive battery) in light of the permissive consent of the patient. Thus, in relation to background laws, rights, values or reasons, then consent can act as a waiver, legitimising actions that would otherwise count as wrongful. Whereas in originating consent, it introduces, alters and endorses parts of this background itself. Like, in the authority of a state’s statute law originates in the consent of its citizen and can confer or withdraw legitimacy from some of the norms themselves. Consent can also be viewed as implicit and explicit. Implicit consent is allowing tying a tourniquet in the arm to draw blood from my vein or ordering from the restaurant menu without first agreeing on a price with the waiter. Explicit consent is signing a contract for a job or say, applying for the Aadhaar card.
Brief History
In an early Biblical text, one significant event representing consent is the story of the covenant between Yahweh and the Israelites established at Mount Sinai. I am not going into the details of this covenant but merely mentioned it to say that this was a collective consent on the part of the Jews, which signified consenting for a legitimate authority. Originating consent is seen in many instances of the ancient life though it was heavily circumscribed. Like in the Athenian situation where slaves, women and people of non-Athenian origin were disenfranchised leaving only a few to give consent. For Plato, political institutions should shape the populace rather than be shaped by it. Authority was to reside with the wise, who acted on the independent demands of justice, rather than legitimacy flowing from the consent of the people.
The Hippocratic texts reinforce that consent is peripheral, recommending concealing most things from the patient while you are attending to him. Most of the discourses of ancient Europe that enunciated consent at different junctures show a common feature that it was limited to a few sections of the society giving less weight to personal autonomy and not a universal phenomenon when we compare with modern societies. Whatever limited voluntary agreement existed later becomes the clue for more radical conceptions of the relation between consent and authority. In European medieval thought, Christianity shows paramount influence on attitude toward consent. Particularly the issue of political consent, starting from Augustine’s theological concept of authority in the fourth century it continued with competing positions. The picture on medical practices, too, shows differing ethical concerns toward the patient.
In the ancient Indian tradition, the Hindu medical texts like Caraka Samhita and Susruta Samhita show evidences of elaborate code of conducts. Caraka advises the physician to take into confidence the close relatives, the elders in the community and even the State officials, before undertaking procedures which might end in death of the patient. Only then the physician can proceed with the treatment. Susruta, a philosopher, and above all a great teacher, established him as a prominent figure in the history of surgery in the ancient and medieval period who laid down ethical conducts for surgery. Arthasastra (3rd century BC) even mentions capital punishment to physicians who have not taken prior permission before performing major surgeries that could result in death.
Buddhist and Jaina texts show many similarities with the general principles of ethics laid down in Hinduism. However, these texts did not create elaborate code of medical ethics but operated in the situation of healing by directly interpreting from the philosophical aphorisms and discourses. In Islamic tradition the Hadith refers Prophet Mohammad saying “a person, who practices art of healing when he is not acquainted with medicine, will be responsible for his actions.” There are three sources of sacred Islamic law: The Qur’an or Koran, the Sunnah – the example, whether in word or deed, of the Prophet Muhammad incorporated in Islamic scriptures, and Ijtihad – the law of deductive logic. A seminal text of 10th century by Ishaq ibn Ali Ruhawi laid down detailed codes in the book Adab al-Tabib. Avicenna, the great Islamic thinker of 10th-11th century, wrote the famous Al-Qanun fi l-tibb and detailed ethical practices. The Islamic Medical Association of North America (IMANA) has elaborated the codes and made it contemporary.
Coming of Modernity
The modern political discourse is seen to be transformed by demands for popular sovereignty understood in terms of the consent of the governed. The broader principle that popular consent is the source of political legitimacy has become firmly entrenched in the domestic political cultures of most developed capitalist nations. The concept of individual autonomy that emerged in modernity can be traced back to German philosopher Immanuel Kant. The idea of the capacity to be one’s own person, to live one’s life according to reasons and motives that are taken as one’s own and not the product of manipulative or distorting external forces is a central value in the Kantian tradition of moral philosophy but it is also given fundamental status in John Stuart Mill’s version of utilitarian liberalism. Examination of the concept of autonomy also figures centrally in debates over education policy, biomedical ethics, various legal freedoms and rights (such as freedom of speech and the right to privacy), as well as moral and political theory more broadly.
To be autonomous is to be one’s own person, to be directed by considerations, desires, conditions, and characteristics that are not simply imposed externally upon one, but are part of what can somehow be considered one’s authentic self. Autonomy, in this sense, seems an irrefutable value, especially since its opposite — being guided by forces external to the self and which one cannot authentically embrace — seems to mark the height of oppression. But specifying more precisely the conditions of autonomy inevitably sparks controversy and invites scepticism about the claim that autonomy is an unqualified value for all individuals. So we can say that autonomy is nothing essential but is contingent on time, place and context.
The liberal conception of the person reflected in standard models of autonomy, underemphasizes the deep identity-constituting connections we have with gender, race, culture, and religion, among other things. Hence, how a consent-giving individual can be autonomous and free from all these identity markers is problematic. It is important to note here that the idea of informed consent in medicine is a derivative of the discourse on the autonomous individual.
In England the famous case of Slater v Baker and Stapleton in 1767 is a watershed as it appealed to professional standards. In this case, surgeons reset a femoral fracture (in an experimental device) without the patient’s consent and without giving him sufficient prior warning. Since it was customary amongst physicians to obtain consent the judge ruled that in failing to do so then the surgeons were remiss. In America the landmark case was Schloendorf v Society of New York Hospital in 1917, where Justice Benjamin Cardozo concluded “Every human being of adult years and sound mind has a right to determine what shall be done with his own body…” This case resulted from a surgical procedure performed upon a patient who had previously refused the operation. The Nuremberg Code came up in 1947 in reaction to inhumane research practices committed by scientists during World War II and World Medical Association in Declaration of Helsinki (1964) emphasized upon the importance of informed consent for medical research by adequately informing the subject of the aims, methods, anticipated benefits, potential hazard, and discomfort which the study may entail.
In mental health, even during the early-modern period, detention without consent was common. In England public financing of institutions came in 1808 and mechanical restraint was widespread till 1840 when a move toward non-restraint started happening. While forced medication was predominantly left to psychiatric discretion, procedures for detention and certification were formalized by the end of the 1880s, establishing legal oversight, based upon medical evidence, for non-consensual admittance to mental institutions. However, my precise point here is that in modernity a humanitarian discourse emerged where an essential universal human was placed at the centre and legal reforms started for individuals with mental illness. One should not miss here that this discourse of psychiatric ethics drew from the concept of unqualified autonomous individual. But we see this human figure fractured when we start considering cultural issues that concern state policies, social hierarchies and crucially the difference in modernity.
Modernity via Colonialism
India became modern through colonial intervention, which made our modernity both deferred and different. The contemporary archive of the history of medicine in modern India, too, is fairly rich telling us how different it was when the knowledge of modern medicine was brought from Europe. Even the history of Islamic medicine in India tells us how the Arabic knowledge was transformed in its long relationship with local knowledge and cultures practiced here. The complexity of knowledge transfer and medical practices, which is in a constant engagement with local knowledge with both hostility and embracement made our modern medical culture a hybrid one.
Not surprisingly, when the issue of informed consent was introduced both in research and medical practice in India it did not produce similar results. The informed consent procedure, by raising questions for preserving autonomy of an individual subject and validity of consent, remains as the most controversial ethical aspect in psychiatric clinical research and this area of ethical sensitivity has long been a source of much debate and controversy, both globally and locally. In India, in spite of legal right to autonomy and self-determination as per Article 21 of the Constitution and the Indian Medical Council’s guidelines, application of autonomy to give consent out of free will is quite limited.
This is explained in a community-based clinical study in rural north India which showed that “the majority of the community interviewed could decide about participation only after discussing it with other community members. Only about a third of all respondents could take an exclusively independent, non-consultative decision. In the case of the few women interviewed, this proportion was even lower – most believed they would be unable to decide for themselves.” A review of ethical practices in medicine in south Asia reveals how different religious cultures influence the contemporary practice of medicine. In a more nuanced article scholars detailed the ethical issues involved in child psychiatry and negotiating psychotropic medicines in India. They said: “India is a collectivist society; patients and children welcome participation of family members in decision making in contrast to western society where they put high emphasis on individual autonomy. In Indian culture the authority of the parents is near absolute and children are not given to exercise any consent/opinion in normal course. Children often find it hard to give their opinion and look up to the parents for their decision.”
Though they have proposed to setup ‘Ethical Review Boards in every institute/medical college and for research ethics to become essential requirement to be adhered to,’ an implicit helplessness is evident in their writing while negotiating universal ethical codes. In a diaspora too, issues become problematic with Indians.
Psychiatry, Culture and Consent in Contemporary India
Our detour through various discourses on consent from the historical perspectives influence us to first consider that the concept of an universal human and its individual autonomy is not an unproblematic, simplistic, evolutionary issue. The history itself is not continuous and depended on multiple factors from politics, social hierarchies, context and above all, temporality. The Indian scenario, too, is complex and its modernity is different from the Euro-American societies and accommodates pre-modern practices rather comfortably. Legal safeguards constituted nationally also fall short of a uniform practice.
The practice of psychiatry as modern medicine in India, unlike its western counterpart, is not similarly powerful considering multiple healing practices existing simultaneously. Rather psychiatry is still limited compared to other healing practices and mainly located in the urban and semi-urban spaces. This indirectly means there are competing and or complimentary ethical practices for mental healing. For psychiatry to work on the concept of an autonomous individual self itself is problematic as both research and our everyday experience show that we also possess a communal or communitarian self. Though the target of therapy ideally is the autonomous individual self but we repeatedly fail to delineate a perfect fit as claimed in the Enlightenment discourse. With a highly differentiated and hierarchised society along education, class, religion, ethnicity, caste and gender lines each case becomes unique in negotiating informed consent. Most of the consenting procedures happen verbally with a probability of differing understandings. It is generally accepted that informed consent should have a proper understanding of the process, but language makes it more critical in our culture. The figure of the doctor, too, is somebody powerful and like a demigod so the patient is always ready to submit and our modern medical system is yet to shrug off from its colonial culture of domination/subordination.
When we are feeling good for introducing a new mental health law that provides more rights to the patient we know how difficult it would be when it comes to practice. In a neo-liberal world faced with new inequalities imposed by its global economics, multinational health corporations violate ethical codes in the era of biotechnogy on various spheres from surrogate mothering to commercial genetics and psychiatric clinical research, taking countries like us as a potential market for profit.
For the mental health professional in the making it becomes crucial to have a good understanding of the politics, culture and history of our society to look beyond the legal frame for ensuring voluntary consent by creating dialogical spaces for a better therapeutic relationship. It is important to relate to other medical systems and their ethical practices and if possible modify modern psychiatry and vice versa. More than the law, better ethical practices can only develop from a concerned and culturally sensitive practice and the reform must come from below by respecting our pluralistic culture of healing.
The writer is an independent scholar