Informed consent is a concept with a relatively recent history in Western medical practice. In the United States, it grew from a number of court cases from the 1950s that dealt with consent in the context of medical mistakes. If a patient goes in for an appendectomy and comes out with a hysterectomy, the idea that she did not consent to the hysterectomy tipped the case in her favor despite the fact that she gave consent for something.
It continued to evolve over the decades in cases where consent was given for a procedure, but an unwanted outcome resulted in a deterioration in the patient’s quality of life. But informed consent was tricky because the informed part presupposed a certain level of understanding and intelligence in the patient. Hence, proxy consent arose where a guardian could give consent, informed of course, in the place of the patient. Hence, parents could consent for children, caregivers for mentally incompetent charges, and children for elderly, perhaps unconscious parents, and so on.
But it didn’t stop there. Informed consent can be given for medically unnecessary procedures. Assuming that the patient understood that a given procedure was unnecessary, this wasn’t a problem except in the case of proxy consent. Since a procedure may have lifelong consequences, proxy consent became limited to immediate medical necessity due to the legal supposition that the patient could regain his competency either at any moment or in the future.
This development in the law of consent was oddly never applied in the context of neonatal circumcision. It is the great lacuna of medical law and ethics. Theories abound for why this is so. From religious origin to parental rights theory, many hopeful commentators have sought to explain this – never to my satisfaction, I might add.
So, what of Africa? If circumcision were deemed useful, how could you craft informed consent for a people who have not inherited this decidedly Western legal tradition? How could you explain the probable damage and likely loss of function resulting from circumcision that occurs over time? How could you possibly describe to an embattled, poorly educated population the so-called ‘pros and cons’ of a procedure that effectively has no consensus even among the educated Western masses?
I think it would be virtually impossible to do so. And it is the constant talk of involving the stakeholders by international policy makers that implicitly recognizes this virtual impossibility. Therefore, the only way of putting circumcision into practice is through proxy consent. The argument will be made by the proponents of circumcision that the high rates of HIV infection make this a medical emergency despite the alleged benefits not being evident for many years in some cases – and ultimately short-lived, indeed. In fact, this is exactly the argument being made by some for neonatal circumcision before so-called ‘sexual debut,’ that is first sexual experiences.
What is even more fascinating – and disturbing – is the knife’s edge that international organizations will likely walk in any circumcision campaign. When does communication in the guise of informing the patient cross the line to advocacy towards a population ill-equipped – or unequipped – to understand and decide? Does advocacy of a procedure effectively become consent by proxy in these circumstances? How likely is it policymakers will overstate the case and ignore contradicting evidence to implement a policy – particularly one the given policy maker has a vested interest in? The potential for abuse is overwhelming.
Lost in the minutiae of this area of discussion is the big picture. Africa is suffering from massive HIV infection rates not because some African men have foreskins. They suffer because of poor development, ignorance, war, famine, environmental degradation, lack of medical care generally, and an endless list of maladies. The fact that circumcised and uncircumcised alike suffer from very similar rates of HIV in Africa contradicts in the macro sense the conclusions of the circumcision studies. The fact that foreskinned men in intact rich nations suffer much less from HIV infection than the circumcised in circumcised rich nations, i.e. the United States, underscores the contradiction.
Proxy consent cannot apply where less invasive and more effective steps have been neglected or left unimplemented and untried. Male circumcision as public policy is implicitly an acknowledgment of failure to address root causes.