The conundrums of the reasonable patient standard in English medical law.

BACKGROUND: In its 2015 decision in Montgomery v. Lanarkshire Health Board, the Supreme Court of the United Kingdom overruled the long-standing, paternalistic prudent doctor standard of care in favour of a new reasonable patient standard which obligates doctors to make their patients aware of all material risks of the recommended treatment and of any reasonable alternative treatment. This landmark judgment has been of interest to the rest of the common law world. A judicial trend of invoking Montgomery to impose more stringent requirements on doctors is discernible in subsequent decisions since then. MAIN BODY: In this narrative review, without questioning the idea that properly informed patients should play a more active role in procedures affecting their own health in furtherance of their autonomy, safety, and consumer rights, we identify and analyse, with the aid of realistic clinical thought experiments, three practical conundrums that the Montgomery standard may inflict on the daily work of doctors, unfairly exposing them to arbitrary legal risks. CONCLUSIONS: These conundrums pertain to the ascertainment of the risks that must be disclosed to the patient under the test of 'materiality'; the legal uncertainty as to the scope of the exceptions; and the actual ability of doctors to cope with the pressures of time. These conundrums offer ripe opportunities to rethink the proper role of judicially developed medical law in modern health care practice.

Flaws in advance directives that request withdrawing assisted feeding in late-stage dementia may cause premature or prolonged dying.

BACKGROUND: The terminal illness of late-stage (advanced) Alzheimer's and related dementias is progressively cruel, burdensome, and can last years if caregivers assist oral feeding and hydrating. Options to avoid prolonged dying are limited since advanced dementia patients cannot qualify for Medical Aid in Dying. Physicians and judges can insist on clear and convincing evidence that the patient wants to die-which many advance directives cannot provide. Proxies/agents' substituted judgment may not be concordant with patients' requests. While advance directives can be patients' last resort to attain a peaceful and timely dying consistent with their lifelong values, success depends on their being effective and acceptable. A single flaw can provide opponents justification to refuse the directive's requests to cease assisted feeding. AIM: This article considers 24 common advance directive flaws in four categories. Process flaws focus on how patients express their end-of-life wishes. Content flaws reflect drafters' selection of conditions and interventions, and how they are described. Inherent flaws can make advance directives unacceptable to authorities concerned about premature dying. Strategies are needed to compel physicians to write needed orders and to prevent third parties from sabotaging these orders after they are  implemented. The article includes excerpts from "dementia-specific" directives or supplements that exemplify each flaw-mostly from the US and Europe. No directive critiqued here included an effective strategy to resolve this long-debated bioethical conflict: the past directive requests "Cease assisted feeding" but the incapacitated patient apparently expresses the desire to "Continue assisted feeding." Some opponents to the controversial request, cease assisted feeding, use this conflict as a conceptual wedge to practice hard paternalism. This article proposes a protocol to prevent this conflict from emerging. These strategies may prevent authorities from requiring patients to fulfill authorities' additional clinical criteria as a prerequisite to honor the requests in patients directives. CONCLUSION: This critique of flaws may serve as a guide to drafting and to selecting effective and acceptable advance directives for dementia. It also poses several bioethical and clinical questions to those in authority: Does your paternalistic refusal to honor patients' wishes respect their self-determination? Protect vulnerable patients from harm? Force patients to endure prolonged suffering? Violate the principles of bioethics? Violate the very foundation of patient-centered care?

Physician-Patient Relationship in Current Cosmetic Surgery Demands More than Mere Respect for Patient Autonomy-Is It Time for the Anti-Paternalistic Model?

The ethical framework of cosmetic surgery is distinct from the one associated with clinical medicine. This distinctiveness has led to significant difficulties in conceptualizing the physician-patient relationship (PPR), as most models have been developed specifically for the latter. The purpose of this article is to show that the PPR in cosmetic surgery can be better described through a distinct approach that we name the anti-paternalistic model of the PPR, and we will briefly present the differences between it and autonomy-based models. We will analyze the principle of non-interference, the variable degree of autonomy of both the patient and the physician within this relationship, the handling of the relevant information, the principle of beneficence as satisfaction, the difficulties regarding the informed consent, the algorithm allowing for the refusal of the procedure, and children-related issues. Based on this analysis, we will show that an anti-paternalistic model of the PPR is preferable to an autonomy-based one, as it allows for better clarification of the underlying ethical issues involved in cosmetic surgery.

Nudges and hard choices.

Nudges are small changes in the presentation of options that make a predictable impact on people's decisions. Proponents of nudges often claim that they are justified as paternalistic interventions that respect autonomy: they lead people to make better choices, while still letting them choose for themselves. However, existing work on nudges ignores the possibility of "hard choices": cases where a person prefers one option in some respects, and another in other respects, but has no all-things-considered preference between the two. In this paper, I argue that many significant medical decisions are hard choices that provide patients with an opportunity to exercise a distinctive sort of "formative autonomy" by settling their preferences and committing themselves to weigh their values in a particular way. Since nudges risk infringing formative autonomy by depriving patients of this opportunity, their use in medical contexts should be sensitive to this risk.

Could Behavioral Economics Mitigate Shortcomings in Shared Decision-Making?

While shared decision-making (SDM) is generally considered to be the standard in current clinical practice, strict application of SDM can result in adverse outcomes in certain contexts. This article examines two illustrative cases-antibiotic over-prescription and decision-making at or near the end of life-to highlight how strictly applied SDM can result in suboptimal outcomes. The article continues to describe how strategies from libertarian paternalism, particularly default setting, framing, and nudging, can be valuable tools in supplementing strict applications of SDM, resulting in improved outcomes and patient care on both individual and societal levels.

[Scientific communication to "my" patient]. / La comunicazione scientifica al "mio" paziente.

In scientific communication, "my" patient should be differentiated from the "average" patient of randomized controlled clinical trials. Communication addressed to "my" patient takes place in the delicate and a certain sense intimate doctor-patient relationship in which various components are involved, such as the patient's expectations, needs and hopes, the professional, emotional and bureaucratic fatigue of the doctor, scientist's rigor and superficiality, the administrator's economic and organizational sustainability, social, media and judicial control. The simple trust required in the era of "paternalism" has undergone a transition first into "informed consent" and then into "shared decision-making". The next step would be that of physicians implementing corporate protocols and guidelines or artificial intelligence algorithms, forgetting that medicine is science applied with art to a complex and complicated system that needs to be ruled by those who know it. Until more effective solutions are found, the most cost-effective way is to apply shared guidelines of evidence-based medicine free from weak recommendations based on expert consensus, asking scientists to "recommend not recommending" when uncertainty prevails, leaving the choice to doctor's experience and patient's preferences.

Cultural Differences in Patients' Preferences for Paternalism: Comparing Mexican and American Patients' Preferences for and Experiences with Physician Paternalism and Patient Autonomy.

Following up on previous research demonstrating the high level of care realized by a paternalistic Mexican physician, the present research further explored the hypothesis that there are cultural differences in preferences for and experiences with physician paternalism vs. patient autonomy in White American culture as compared with Mexican culture. In this research, we interviewed sixty (60) people including twenty (20) Mexican, twenty (20) Mexican American, and twenty (20) White American respondents. We asked these patients about their experiences with and attitudes towards paternalism and patient autonomy in healthcare interactions. With some caveats, our data showed strong support for both hypotheses while also suggesting a high level of care can be realized by paternalistic physicians when "paternalism" is understood in a cultural context. We close with a brief consideration of the implications of these findings.

Dignity of Risk in Rehabilitation: Theory and Practice.

Dignity of risk, as originally defined by Robert Perske (1972), focused on the treatment of people with intellectual impairments and the need to shift away from paternalism. However, the term also resonates deeply in other health-care situations today. The concept of dignity of risk is tricky to operationalize in many contexts, including in medical decision-making during rehabilitation. In some cases, clinicians may focus solely on risk and how best to "minimize" risk to patients, rather than on understanding and fleshing out options and choices. Questions naturally surface, such as: whose risk are we seeking to limit and at what cost to a patient's dignity? How do personal choices relate to patients' values and quality of life? Can we employ a shared decision-making model when discussing risk taking? When we look closely, we recognize that dignity of risk is at play when cognitively intact patients disregard medical advice that is viewed as the standard of care. This article closely examines this type of risk, the context in which it arises in rehabilitation, and opportunities for shared decision-making that can integrate dignity of risk principles.

On the relation between decision quality and autonomy in times of patient-centered care: a case study.

It is commonplace that care should be patient-centered. Nevertheless, no universally agreed-upon definition of patient-centered care exists. By consequence, the relation between patient-centered care as such and ethical principles cannot be investigated. However, some research has been performed on the relation between specific models of patient-centered care and ethical principles such as respect for autonomy and beneficence. In this article, I offer a detailed case study on the relationship between specific measures of patient-centered care and the ethical principle of respect for autonomy. Decision Quality Instruments (DQIs) are patient-centered care measures that were developed by Karen Sepucha and colleagues. The model of patient-centered care that guided the development of these DQIs pays special attention to the ethical principle of respect for autonomy. Using Jonathan Pugh's theory of rational autonomy, I will investigate how the DQIs relate to patient autonomy. After outlining Pugh's theory of rational autonomy and framing the DQIs accordingly (Part I), I will investigate whether the methodological choices made while developing these DQIs align with respect for autonomy (Part II). My analysis will indicate several tensions between DQIs and patient autonomy that could result in what I call "structural paternalism." These tensions offer us sufficient reasons, especially given the importance of the ethical principle of respect for autonomy, to initiate a more encompassing debate on the normative validity of Decision Quality Instruments. The aim of the present paper is to highlight the need for, and to offer a roadmap to, this debate.

"What are my options?": Physicians as ontological decision architects in surgical informed consent.

The aim of a theoretically ideal process of informed consent is to promote the autonomy of the patient and to limit unethical physician paternalism. However, in practice, the nature of the medical profession requires physicians to act as ontological decision architects-based on the medical knowledge that they acquire through their experience and training, physicians ontologically determine a subset of viable courses of action for their patient. What is observed is not an unethical physician limitation or biasing of the patient towards certain treatment options that violates patient autonomy or consciously undermines informed consent, but rather a more foundational paternalism that is necessarily inherent to the physician-patient relationship. In this article we argue for a recognition of this underlying physician paternalism and posit that this necessary paternalism is not a foil to patient autonomy, but rather a foundational aspect of the duties of the medical professional within the physician-patient relationship.

Between paternalism and illegality: a longitudinal analysis of the role and condition of manual scavengers in India.

Manual scavengers, or 'Safai Karamcharis', as they are known in India, are sanitation workers who manually clean human waste for a living and face considerable occupational health risks. They are subject to deep-seated, caste-based stigma associated with their perceived 'caste impurity' and lack of cleanliness, which result both in consistently dangerous substandard working conditions and lack of social mobility, with women facing greater hardships. The COVID-19 pandemic has further exacerbated their plight. Despite the considerable efforts of social advocates, organised movements and government institutions, reforms and criminalisation have produced mixed results and campaigners remain divided on whether banning manual scavenging is an effective solution. This article reviews the history of attempts to address scavenging in India. Starting in the colonial period and ending with the current government's Swachh Bharat Mission, it highlights how attempts to deal with scavenging via quick-fix solutions like legal bans criminalising their employment, infrastructure upgrades or paternalistic interventions have either failed to resolve issues or exacerbated scavengers' situation by pushing long-standing problems out of view. It argues that meaningful progress depends on abandoning top-down modes of decision-making, addressing the underlying sociocultural and infrastructural factors that perpetuate the ill health and social conditions of manual scavengers, collecting data on the true extent of scavenging, and investing in and providing political agency to communities themselves.

The curious case of "trust" in the light of changing doctor-patient relationships.

The centrality of trust in traditional doctor-patient relationships has been criticized as inordinately paternalistic, yet in today's discussions about medical ethics-mostly in response to disruptive innovation in healthcare-trust reappears as an asset to enable empowerment. To turn away from paternalistic trust-based doctor-patient relationships and to arrive at an empowerment-based medical model, increasing reference is made to the importance of nurturing trust in technologies that are supposed to bring that empowerment. In this article we stimulate discussion about why the move towards patient empowerment may not be able to keep clear of the criticism of trust in traditional patient-doctor relationships. First, we explore how such a shift in trust dynamics might corrode patient empowerment in the name of patient empowerment. Second, we examine how a translocation of trust may at best push the "trust issue" elsewhere and at worst make it harder to evaluate trustworthiness.

Sharing Vulnerabilities in the Woman Patient/Doctor Encounter.

This article is an examination of the doctor-woman patient encounter through a vulnerability lens. This relationship has been traditionally been critiqued as a paternalistic encounter in which the remedy was to recognize the patient's rights of autonomy. In this article, it is suggested that a more helpful approach is to recognize the vulnerability of both the patient and doctor. This encourages an interaction that involves seeking a mutual and collaborative response to the issues facing the patient.

Older patients' autonomy when cared for at emergency departments.

BACKGROUND: Older patients in emergency care often have complex needs and may have limited ability to make their voices heard. Hence, there are ethical challenges for healthcare professionals in establishing a trustful relationship to determine the patient's preferences and then decide and act based on these preferences. With this comes further challenges regarding how the patient's autonomy can be protected and promoted. AIM: To describe nurses' experiences of dealing with older patients' autonomy when cared for in emergency departments (EDs). RESEARCH DESIGN: This study adopted reflective lifeworld theory and a phenomenological design. PARTICIPANTS AND RESEARCH CONTEXT: A total of 13 open-ended interviews were performed with nurses working at two EDs in Sweden. ETHICAL CONSIDERATIONS: The study was reviewed by the Ethical Advisory Board in South East Sweden and conducted according to the Declaration of Helsinki. All participants gave consent. FINDINGS: Nurses' experiences of dealing with older patients' autonomy in EDs are characterized by moving in a conflicting uphill struggle, indicating obscure thoughts on how patient autonomy can be protected in an ethically challenging context. The phenomenon is further described with its meaning constituents: 'Being hampered by prioritization under stress', 'Balancing paternalism and patient autonomy', 'Making decisions without consent in the patient's best interests' and 'Being trapped by notions of legitimate care needs'. CONCLUSION: Stressful work conditions and lacking organizational strategies in EDs contribute to nurses maintaining unjustified paternalistic care, regardless of the patient's ability and medical condition, and questioning who has legitimacy for participating in decisions about care. The nurses' protection and promotion of older patients' autonomy is dependent on the opportunity, ability and willingness to create a patient relationship where the patient's voice and preferences are valued as important. Consequently, strategies are needed to improve patient autonomy in EDs based on the idea of 'relational autonomy'.