Over the past few decades, Indigenous communities have successfully campaigned for greater inclusion in decision-making processes that directly affect their lands and livelihoods. As a result, two important participatory rights for Indigenous peoples have now been widely recognized: the right to consultation and the right to free, prior and informed consent (FPIC). Although these participatory rights are meant to empower the speech of these communities—to give them a proper say in the decisions that most affect them—we argue that the (...) way these rights have been implemented and interpreted sometimes has the opposite effect, of denying them a say or ‘silencing’ them. In support of this conclusion we draw on feminist speech act theory to identify practices of locutionary, illocutionary, and perlocutionary group silencing that arise in the context of consultation with Indigenous communities. (shrink)

Informed consent is considered by many to be a moral imperative in medical research. However, it is increasingly acknowledged that in many actual instances of consent to participation in medical research, participants do not employ the provided information in their decision to consent, but rather consent based on the trust they hold in the researcher or research enterprise. In this article we explore whether trust-based consent is morally inferior to information-based consent. We analyse the (...) moral values essential to valid consent – autonomy, voluntariness, non-manipulation, and non-exploitation – and assess whether these values are less protected and promoted by consent based on trust than they are by consent based on information. We find that this is not the case, and thus conclude that trust-based consent if not morally inferior to information-based consent. (shrink)

If Badguy threatens Goodguy with harm, and Goodguy consents to giving his money to Badguy (to avoid the harm), Goodguy’s consent is invalid because coerced. But if under Badguy’s coercive threat Goodguy proceeds to consent to paying someone else (or to hiring a bodyguard), the consent may very well be valid. The challenge is to explain this difference. In this paper I argue that the way forward is to recognize that the content of consent is contrastive (...) – one doesn’t just agree to giving the money; rather, one consents to giving-the-money-rather-than-some-alternative. And then the normative upshot of the relevant consent depends on what the morally relevant contrast is, which in turn depends on who is (before the relevant interaction) entitled to what against whom. We have, I think, independent reasons to understand consent contrastively, and once we do, we can solve the puzzle of third party coercion with ease. (shrink)

Informed consent is a central topic in contemporary biomedical ethics. Yet attempts to set defensible and feasible standards for consenting have led to persistent difficulties. In Rethinking Informed Consent in Bioethics Neil Manson and Onora O'Neill set debates about informed consent in medicine and research in a fresh light. They show why informed consent cannot be fully specific or fully explicit, and why more specific consent is not always ethically better. They argue that consent (...) needs distinctive communicative transactions, by which other obligations, prohibitions, and rights can be waived or set aside in controlled and specific ways. Their book offers a coherent, wide-ranging and practical account of the role of consent in biomedicine which will be valuable to readers working in a range of areas in bioethics, medicine and law. (shrink)

My starting point is what I call the Normative Authority Conception of justification, where S is justified in their belief that p at t (to some degree n) if and only if their believing that p at t is not ruled out by epistemic norms that have normative authority over S at t. With this in mind, this paper develops an account of doxastic justification by first developing an account of the normative authority of epistemic norms. Drawing from work in (...) political philosophy, I argue that (a) the cognitive and evaluative commitments and concerns behind our actual practices of holding each other and ourselves accountable for our beliefs reveal which epistemic norms we have consented to be under, and that (b) it is because we have consented to be under the authority of these norms – by actually holding ourselves and others accountable to them – that they in turn have normative authority over us. By connecting the authority of epistemic norms to the authority we have over ourselves in this way, the resulting account of doxastic justification (i) explains why it can be appropriate to criticize, resent, or sanction someone for having unjustified beliefs, (ii) avoids the phenomena of normative alienation and normative parochialism, and (iii) respects the social and collective nature of epistemic justification. (shrink)

In recent years, an old challenge to informed consent has been rediscovered: the challenge of ignorance. Several authors argue that due to the presence of irreducible ignorance in certain treatments, giving informed consent to these treatments is not possible. The present paper examines in what ways ignorance is believed to prevent informed consent and which treatments are affected by that. At this, it becomes clear that if the challenge of ignorance truly holds, it poses a major problem (...) to informed consent. The paper argues, however, that from both an empirical and a theoretical point of view, it is not convincing that ignorance prevents informed consent. Still, it seems important that the presence of irreducible ignorance is openly discussed during the informed consent process. (shrink)

Research consent processes must provide potential participants with the necessary information to help them decide if they wish to join a study. On the Oxford ‘A’ Research Ethics Committee we’ve found that current research proposals mostly provide adequate detail (even if not in an easily comprehensible format), but often fail to support decision making, a view supported by published evidence. In a previous paper, we described how consent might be structured, and here we develop the concept of an (...) Information and Decision Aid (IDA) that can support decision making and be used to guide the dialogue between researcher and potential participant. Our proposal requires limited changes to current processes or paperwork and would provide an easily accessible document for others that the potential participant might approach for advice. It could later be integrated with the Informed Consent Form to ensure all matters of concern to the individual participant have been addressed before consent is formally signed off. (shrink)

This chapter provides an outline of consent in the history of medical ethics. In doing so, it ranges over attitudes towards consent in medicine in ancient Greece, medieval Europe and the Middle East, as well as the history of Western law and medical ethics from the early modern period onwards. It considers the relationship between consent and both the disclosure of information to patients and the need to indemnify physicians, while attempting to avoid an anachronistic projection of (...) concern with patient autonomy too far back into the historical record. The chapter also includes a survey of the development of the social and intellectual infrastructure that underpins modern medical consent. It concludes with a brief discussion of possible future directions for ethical approaches to medical consent and competence that would depart from the models that arose in the twentieth-century. (shrink)

That consent could wholly explain – either descriptively or normatively – the legitimacy of the structure of political community and it’s most important and influential institutions and practices is deeply implausible. There are two general sorts of considerations adduced against such a proposition. First, history simply refutes it: force is an essential feature of the founding of any political society, and arguably, for its continued existence, and power relations, in all their complexity, are imperfectly tracked by consent. Moreover, (...) there are deep questions about what people are actually consenting to, given the plurality and changing nature of political collectivities over time. Second, in modern societies (perhaps in just any complex human society) our conduct is shaped and governed in so many ways so as to influence not only the options we have, but also the interests, desires and capabilities constitutive of our ability to act in relation to them in the first place. This undermines any easy connection between the presence of consent and my being free. A familiar conundrum for consent as a standard of legitimacy is that if it means literally that individual consent is required for non-arbitrariness in public decision-making, then public decision-making – indeed almost any form of collective action –becomes almost impossible. If only tacit or implicit consent is required, then we can find it everywhere, and thus nowhere, and the standard is empty. (shrink)

Over the last few decades, multiple studies have examined the understanding of participants in clinical research. They show variable and often poor understanding of key elements of disclosure, such as expected risks and the experimental nature of treatments. Did the participants in these studies give valid consent? According to the standard view of informed consent they did not. The standard view holds that the recipient of consent has a duty to disclose certain information to the profferer of (...) consent because valid consent requires that information to be understood. The contents of the understanding and disclosure requirements are therefore conceptually linked. In this paper, we argue that the standard view is mistaken. The disclosure and understanding requirements have distinct grounds tied to two different ways in which a token of consent can be rendered invalid. Analysis of these grounds allows us to derive the contents of the two requirements. It also implies that it is sometimes permissible to enroll willing participants who have not understood everything that they ought to be told about their clinical trials. (shrink)

Most people think it is wrong to take organs from the dead if the potential donors had previously expressed a wish not to donate. Yet people respond differently to a thought experiment that seems analogous in terms of moral relevance to taking organs without consent. We argue that our reaction to the thought experiment is most representative of our deepest moral convictions. We realize not everyone will be convinced by the conclusions we draw from our thought experiment. Therefore, we (...) point out that the state ignores consent in performing mandatory autopsies in some cases. If readers are willing to give up the permissibility of mandatory autopsies, we then offer some metaphysical arguments against posthumous harm. Drawing upon claims about bodies ceasing to exist at death and Epicurean-inspired arguments against posthumous interests, we make a case for an organ conscription policy which respects fundamental liberal principles of autonomy, bodily integrity, and property. (shrink)

This article addresses two areas of continuing controversy about consent in clinical research: the question of when consent to low risk research is necessary, and the question of when consent to research is valid. The article identifies a number of considerations relevant to determining whether consent is necessary, chief of which is whether the study would involve subjects in ways that would (otherwise) infringe their rights. When consent is necessary, there is a further question of (...) under what conditions consent is valid or successful in waiving a right. The most influential account of validity conditions is non-moralized, in the sense that the conditions make no essential reference to whether the researcher soliciting consent has obtained it in a way that wrongs the subject. The article examines the implications of this account, and compares it with recent accounts that moralize some of the validity conditions. -/- . (shrink)

In Amerika wie auch in Deutschland wird die Verletzung der ärztlichen Aufklärungspflicht im Arzthaftungsprozess als Alternativklagegrund angeführt für den Fall, dass der Nachweis eines Behandlungsfehlers (malpractice) nicht gelingt. Gegenstand dieser Arbeit ist es, die zahlreichen amerikanischen Gerichtsentscheidungen sowie die juristische Literatur im Vergleich mit dem deutschen Recht darzustellen und zu untersuchen, ob sich Fallgruppen bilden und Regeln ableiten lassen, denen in beiden Rechtsordnungen Gültigkeit zukommt.

Obtaining human genetic samples is vital for many biobank research purposes, yet, the ethics of obtainment seems to many fraught with difficulties. One key issue is consent: it is by many considered ethically vital that consent must be fully informed (at least ideally speaking) in order to be legitimate. In this paper, we argue for a more liberal approach to consent: a donor need not know all the specifics of future uses of the sample. We argue that (...) blanket consent is ethically defensible, and that this is buttressed by considerations of (justified) trust-relations. Given robust institutional oversight, blanket consent is a permissible form of consent in the bio-banking context. (shrink)

Although informed consent is important in clinical research, questions persist regarding when it is necessary, what it requires, and how it should be obtained. The standard view in research ethics is that the function of informed consent is to respect individual autonomy. However, consent processes are multidimensional and serve other ethical functions as well. These functions deserve particular attention when barriers to consent exist. We argue that consent serves seven ethically important and conceptually distinct functions. (...) The first four functions pertain principally to individual participants: (1) providing transparency; (2) allowing control and authorization; (3) promoting concordance with participants' values; and (4) protecting and promoting welfare interests. Three other functions are systemic or policy focused: (5) promoting trust; (6) satisfying regulatory requirements; and (7) promoting integrity in research. Reframing consent around these functions can guide approaches to consent that are context sensitive and that maximize achievable goals. (shrink)

Substantial efforts have recently been made to reform the physician-patient relationship, particularly toward replacing the `silent world of doctor and patient' with informed patient participation in medical decision-making. This 'new ethos of patient autonomy' has especially insisted on the routine provision of informed consent for all medical interventions. Stronly supported by most bioethicists and the law, as well as more popular writings and expectations, it still seems clear that informed consent has, at best, been received in a lukewarm (...) fashion by most clinicians, many simply rejecting what they commonly refer to as the `myth of informed consent'. The purpose of this book is to defuse this seemingly intractable controversy by offering an efficient and effective operational model of informed consent. This goal is pursued first by reviewing and evaluating, in detail, the agendas, arguments, and supporting materials of its proponents and detractors. A comprehensive review of empirical studies of informed consent is provided, as well as a detailed reflection on the common clinician experience with attempts at informed consent and the exercise of autonomy by patients. In the end, informed consent is recast as a management tool for pursuing clinically and ethically important goods and values that any clinician should see as meriting pursuit. Concurrently, the model incorporates a flexible, anticipatory approach that recognizes that no static, generic ritual can legitimately pursue the quite variable goods and values that may be at stake with different patients in different situations. Finally, efficiency of provision is addressed by not pursuing the unattainable and ancillary. Throughout, the traditional principle of beneficence is appealed to toward articulating an operational model of informed consent as an intervention that is likely to change outcomes at the bedside for the better. (shrink)

In this article we provide an in-depth description of a new model of informed consent called ‘meta consent’ and consider its practical implementation. We explore justifications for preferring meta consent over alternative models of consent as a solution to the problem of secondary use of health data for research. We finally argue that meta consent strikes an appropriate balance between enabling valuable research and protecting the individual.

The predominant view is that a study using health data is observational research and should require individual consent unless it can be shown that gaining consent is impractical. But recent arguments have been made that citizens have an ethical obligation to share their health information for research purposes. In our view, this obligation is sufficient ground to expand the circumstances where secondary use research with identifiable health information is permitted without explicit subject consent. As such, for some (...) studies the Institutional Review Board/Research Ethics Committee review process should not assess the practicality of gaining consent for data use. Instead the review process should focus on assessing the public good of the research, public engagement and transparency. (shrink)

Les développements idéologiques contemporains, qui concrétisent les choix opérés par la raison moderne, montrent l'engagement de celle-ci dans des voies de mort. Le relativisme d'aujourd'hui, ultime résurgence de cette maladie philosophique qu'est le scepticisme, n'en est qu'un signe supplémentaire. Mais l'écoute des aspirations les plus profondes de l'âme ne révèle-t-elle pas combien elle demeure en attente d'une autre voie, pleinement salvatrice? Une voie, unique voie de vie, déjà proposée à la raison philosophique, à Athènes, en 51 de notre ère, et (...) qui fit naître les rires désabusés. Et pourtant... Le salut de la raison, de la philosophie, ne passe-t-il pas unique ment par le consentement aux noces par lesquelles le Verbe incarné s'offre à l'âme humaine? Ce livre ne s'adresse pas à ceux qui savent, encore moins à tous ceux qui pensent savoir. Mais à ceux qui refusent de se perdre avec les courants intellectuels dominants; qui ne désespèrent pas de la raison ; et qui demeurent capables d'entendre les appels du Verbe à l'esprit de petitesse. (shrink)

Miller analyzes the relationship between consent and autonomy by offering three pictures. For autonomy, Miller distinguishes between procedural, substantive, and weak substantive autonomy. The corresponding views of consent are what Miller has termed as consensual minimalism, consensual idealism, and consensual realism. The requirements of sexual consent under consensual minimalism are a voluntary informed agreement. However, feminist critiques reveal the inadequacies of this simple position. Consensual idealism, which corresponds with substantive autonomy, offers a robust picture where consent (...) and autonomy must be based on non-oppression. However, this view is considered too ideal and it ignores context. Weak substantive autonomy takes into account the context in the sexual domain. Correspondingly, consensual realism takes into account the context and still fulfills the requirements of consent. (shrink)

Recently, there have been several illuminating discussions highlighting a connection between the appropriate conditions for morally responsible agency and for valid informed consent in health care (including for personal medical decisions and for participation in clinical trials). In this chapter, I begin by drawing parallels between debates in both areas (e.g. “substantive” versus “procedural” accounts, “capacity” versus “flow” accounts) and then briefly defend the idea that we should focus on a particular family of substantive views that appeal to high-enough (...) quality opportunities for decision-making which are determined by both agents’ reasons-responsive capacities and situational factors. Notably, even if reasons-responsiveness conditions feature in both accounts of responsible agency and of informed consent, it remains an open question just how similar the conditions are in each area. In particular, since the basis for and the quality of our reasons-responsive capacities come in degrees, there is a question of when a threshold is met so that a person can be said to have a capacity, or a sufficiently high-quality capacity, which is a difficult question to answer in both realms. In this chapter, I assess possible answers and consider how constrained those answers should be by independent reasons to treat responsible agency and eligibility for informed consent similarly. (shrink)

Valid consent requires the potential research participant understands the information provided. We examined current practice in 50 proposed Clinical Trials of Investigational Medicinal Products to determine how this understanding is checked. The majority of the proposals ( n = 44) indicated confirmation of understanding would take place during an interactive conversation between the researcher and potential participant, containing questions to assess and establish understanding. Yet up until now, research design and review have not focussed upon this, concentrating more on (...) written material. We propose ways this interactive conversation can be documented, and the process of checking understanding improved. (shrink)

We read commentaries on our feature article ‘The ethics of consent during labour and birth: episiotomies’1 with gratitude and interest. Nearly all commenting authors agree that consent for in-labour procedures is necessary and ideally given at the point of intervening. Both Shalowitz & Ralston and Stirrat note that this is already required by professional statements and guidelines in the USA2 and UK3, respectively, but also note that practice does not yet conform. The Americans authors helpfully emphasise the importance (...) of multilevel institutional measures for closing this gap, including consent policies and reporting mechanisms, as well as ongoing education.2 The UK writer seconds the role for education within wider shared decision-making and informed choice approaches, and generously commends our paper for close study by all maternity care providers. Others add a cautionary note. Lee applauds all our recommendations, but notes our proposals cannot fully secure autonomy because of, among others, epistemic injustice and other power differentials.4 Kumar-Hazard and Dahlen worry that opt-out consent is equal to substitute decision-making; weakens women’s rights; and is open to abuse.5 Nelson and Clough object to our willlingness to work within a flawed conceptual framework, which ought to be challenged.6 We agree that there are limits to what our proposal can do. It cannot rectify unequal distributions of epistemic credibilities, either in general or in any particular interaction. Risk communication is never neutral;7 “even the most well-meaning healthcare professionals could unwittingly wield influence over birthing women’s …. (shrink)

In a community that takes rights seriously, consent features pervasively in both moral and legal discourse as a justifying reason: stated simply, where there is consent, there can be no complaint. However, without a clear appreciation of the nature of a consent-based justification, its integrity, both in principle and in practice, is liable to be compromised. This book examines the role of consent as a procedural justification, discussing the prerequisites for an adequate consent -- in (...) particular, that an agent with the relevant capacity has made an unforced and informed choice, that the consent has been clearly signalled, and that the scope of the authorisation covers the act in question. It goes on to highlight both the Fallacy of Necessity (where there is no consent, there must be a wrong) and the Fallacy of Sufficiency (where there is consent, there cannot be a wrong). Finally, the extent to which the authority of law itself rests on consent is considered. If the familiarity of consent-based justification engenders confusion and contempt, the analysis in this book acts as a corrective, identifying a range of abusive or misguided practices that variously under-value or over-value consent, that fictionalise it or that are fixated by it, and that treat it too casually or too cautiously. In short, the analysis in Consent in the Law points the way towards recognising an important procedural justification for precisely what it is as well as giving it a more coherent application. (shrink)

There is an ongoing debate about the “ontology” of consent. Some argue that it is a mental act, some that it is a “hybrid” of a mental act plus behaviour that signifies that act; others argue that consent is a performative, akin to promising or commanding. Here it is argued that all these views are mistaken—though some more so than others. We begin with the question whether a normatively efficacious act of consent can be completed in the (...) mind alone. Standard objections to this “mentalist” account of consent can be rebutted. Here we identify a much deeper problem for mentalism. Normatively transformative acts of consent change others’ reasons for acting in a distinctive—“robust”—way. Robust reason-changing involves acts aimed at fulfilling a distinctive kind of reflexive and recognition-directed intention. Such acts cannot be coherently performed in the mind alone. Consent is not a mental act, but nor is it the signification of such an act. Acts of consent cannot be “completed” in the mind, and it is a mistake to view consent behaviour as making known a completed act of consent. The robust reason-changing account of consent developed here shares something with the performative theory, but is not saddled with a label whose home is philosophy of language. Certain kinds of performative utterance may change reasons robustly, but not all robust reason-changing involves or requires acts of speech, and consent can be effected by a wide range of behavioural acts. (shrink)

Philosophy and Phenomenological Research, EarlyView. Despite the acknowledgement of the moral significance of consent there is still much work to be done in determining which specific sexual encounters count as unproblematically consensual. This paper focuses on the impact of deception. It takes up the specific case of deception about one's self. It may seem obvious that one ought not to lie to a sexual partner about who one is, but determining which features of oneself are most relevant, as well (...) as the lies which it follows would be impermissible to tell, is complicated. It is argued here that deception about one's morally valenced character traits, those we think of as virtues and vices, are particularly problematic. This is true regardless of whether knowing the truth about those traits would have made a difference to one's partner's consent. Attention is then drawn to a range of types of lies that one ought not to tell. (shrink)

Trials with highly unfavourable risk–benefit ratios for participants, like HIV cure trials, raise questions about the quality of the consent of research participants. Why, it may be asked, would a person with HIV who is doing well on antiretroviral therapy be willing to jeopardise his health by enrolling in such a trial? We distinguish three concerns: first, how information is communicated to potential participants; second, participants’ motivations for enrolling in potentially high risk research with no prospect of direct benefit; (...) and third, participants’ understanding of the details of the trials in which they enrol. We argue that the communication concern is relevant to the validity of informed consent and the quality of decision making, that the motivation concern does not identify a genuine problem with either the validity of consent or the quality of decision making and that the understanding concern may not be relevant to the validity of consent but is relevant to the quality of decision making. In doing so, we derive guidance points for researchers recruiting and enrolling participants into their HIV cure trials, as well as the research ethics committees reviewing proposed studies. (shrink)

Hypothetical consent is puzzling. On the one hand, it seems to make a moral difference across a wide range of cases. On the other hand, there seem to be principled reasons to think that it cannot. In this article I put forward reasonably precise formulations of these general suspicions regarding hypothetical consent; I draw several distinctions regarding the ways in which hypothetical consent may make a moral difference; I distinguish between two autonomy-related concerns, nonalienation and sovereignty; and, (...) utilizing these distinctions, I show that—and in a preliminary way, when—the objections to the moral significance of hypothetical consent fail. (shrink)

The traditional view according to which we adults tacitly consent to a state’s lawful actions just by living within its borders—the residence theory—is now widely rejected by political philosophers. According to the critics, this theory fails because consent must be (i) intentional, (ii) informed, and (iii) voluntary, whereas one’s continued residence within a state is typically none of these things. Few people intend to remain within the state in which they find themselves, and few realize that by remaining (...) they are consenting to the state’s lawful actions. In addition, the various obstacles standing in the way of us leaving the state render our remaining involuntary. Thus, the critics conclude, few if any people can be considered to have consented through their residence. I argue that these objections fail and that the residence theory remains a viable option, at least for those who are not committed incompatibilists. (shrink)

In order to involve children in the decision-making process about participation in medical research it is widely recommended that the child’s assent be sought in addition to parental consent. However, the concept of assent is fraught with difficulties, resulting in confusion among researchers and ethics committees alike.

Consider three cases: -/- Turn: A trolley is about to kill five innocent strangers. You can turn the trolley onto me, saving the five and killing me. -/- Hurl: A trolley is about to kill five innocent strangers. You can hurl me at the trolley, saving the five and paralyzing me. -/- TurnHurl: A trolley is about to kill five innocent strangers. You can turn the trolley onto me, saving the five and killing me. You can instead hurl me at (...) the trolley, saving the five and paralyzing me. -/- Most find the following four claims intuitively plausible: -/- (1) It is permissible to turn the trolley onto me in Turn. (2) It is impermissible to hurl me at the trolley in Hurl. (3) It is impermissible to turn the trolley onto me in TurnHurl. (4) It is permissible to hurl me at the trolley in TurnHurl. -/- But how does turning go from permissible to impermissible, and hurling from impermissible to permissible, when both alternatives are available? I argue that such “secondary permissibility” claims are explained by contrastive consent. Even if I do not consent to being harmed, it is likely I’ll consent to being hurled at the trolley rather than being turned onto. (shrink)

Why is consent revocable? In other words, why must we respect someone's present dissent at the expense of her past consent? This essay argues against act-based explanations and in favor of a rule-based explanation. A rule prioritizing present consent will serve our interests the best, in light of our interests in having flexibility over our consent and in minimizing the possibility of error in people's judgments about whether we consent.

Since its advent in the 20th century, informed consent has become a cornerstone of ethical healthcare, and obtaining it a core obligation in medical contexts. In my dissertation, I aim to examine the theoretical underpinnings of informed consent and identify what values it is taken to protect. I will suggest that the fundamental motivation behind informed consent rests in something I’ll call bodily self-sovereignty, which I argue involves a coupling of two groups of values: autonomy and non-domination (...) on the one hand, and self-ownership and personal integrity on the other. I will then go on to consider two 'case studies' I take to shed light on what is at stake in securing informed consent - consent in psychiatrically ill populations, and consent to interventions that involve the modification of the genetic germline. (shrink)

Our decision-making is often subject to framing effects: alternative but equally informative descriptions of the same options elicit different choices. When a decision-maker is vulnerable to framing, she may consent under one description of the act, which suggests that she has waived her right, yet be disposed to dissent under an equally informative description of the act, which suggests that she has not waived her right. I argue that in such a case the decision-maker’s consent is simply irrelevant (...) to the permissibility of proceeding. I then consider two alternative views. According to the first, people susceptible to framing are able to give valid consent so long as they are sufficiently informed. This suggestion, I argue, maintains an overly narrow focus on mere quantity of information to the exclusion of other choice-affecting factors. A second response, which appeals to hypothetical consent, is likewise of little use in resolving the moral problem posed by framing effects. I conclude that if susceptibility to framing undermines the validity of consent, we may have good reason to reconsider whether consent has the rights-waiving function commonly attributed to it. (shrink)

Unconsented pelvic exams under anesthesia are assaults cloaked in defense of healthcare education. Preemptive linguistic qualifiers “presumed” or “implied” attempt to justify such violations with flippancy toward their oxymoronic implications: to suggest a priori that consent can be assumed undermines its otherwise standalone social, ethical, and medico-legal reverence. In this paper I conceptualize “medical sexual assault” and argue that presumed consent for intimate exams exemplifies its definition. By bluntly describing pelvic exams as “penetration,” this work aims to reify (...) the intimate reality of the clinical label “pelvic exam” and to call attention to cisheteronormative and androcentric assumptions involved in its practice. Additionally, this scholarship seeks to create a foundation toward broader work in conceptualizing clinical rape culture. Given recent national survey data indicating a surprising frequency of unconsented intimate exams, detailed language as to their problematics is necessary for ongoing legal and ethical efforts. Explicit consent for intimate exams must be the standard of care for conscious and unconscious patients. (shrink)

Different types of consent are used to obtain human biospecimens for future research. This variation has resulted in confusion regarding what research is permitted, inadvertent constraints on future research, and research proceeding without consent. The National Institutes of Health Clinical Center's Department of Bioethics held a workshop to consider the ethical acceptability of addressing these concerns by using broad consent for future research on stored biospecimens. Multiple bioethics scholars, who have written on these issues, discussed the reasons (...) for consent, the range of consent strategies, and gaps in our understanding, and concluded with a proposal for broad initial consent coupled with oversight and, when feasible, ongoing provision of information to donors. This article describes areas of agreement and areas that need more research and dialogue. Given recent proposed changes to the Common Rule, and new guidance regarding storing and sharing data and samples, this is an important and tim.. (shrink)

According to one influential view, requirements to elicit consent for medical interventions and other interactions gain their rationale from the respect we owe to each other as autonomous, or self-governing, rational agents. Yet the popular presumption that consent has a central role to play in legitimate intervention extends beyond the domain of cases where autonomous agency is present to cases where far from fully autonomous agents make choices that, as likely as not, are going to be against their (...) own best interest. The question how we should understand the rationale for eliciting consent in this range of ‘non-ideal’ cases is comparatively ill understood. In this paper, I explore the prospects of accounting for consent requirements in such ‘non-ideal’ cases by appealing to a set of agency-based interests; including an interest in playing a meaningful part in joint decisions affecting ourselves and others. (shrink)

Informed consent in medical practice is essential and a global standard that should be sought at all the times doctors interact with patients. Its intensity would vary depending on the invasiveness and risks associated with the anticipated treatment. To our knowledge there has not been any systematic review of consent practices to document best practices and identify areas that need improvement in our setting. The objective of the study was to evaluate the informed consent practices of surgeons (...) at University teaching Hospitals in a low resource setting. (shrink)

Coercion by the recipient of consent renders that consent invalid. But what about when the coercive force comes from a third party, not from the person to whom consent would be proffered? In this paper I analyze how threats from a third party affect consent. I argue that, as with other cases of coercion, we should distinguish threats that render consent invalid from threats whose force is too weak to invalidate consent and threats that (...) are legitimate. Illegitimate controlling third party threats render consent invalid just as they do in two party cases. However, knowing that the consent is invalid is not sufficient to tell the recipient of consent what she may or should do. I argue that when presented with a token of consent from someone whom she thinks is experiencing an illegitimate controlling threat, the recipient may act on that token if and only if doing so represents a reasonable joint decision for her and the victim of coercion. The appropriate action for someone faced with third party coercion therefore depends on the other options open to her and those open to the victim of coercion. (shrink)

From Hippocrates to paternalism to autonomy : the new hegemony -- From autonomy to consent -- Consent, autonomy, and the law -- Autonomy at the end of life -- Autonomy and pregnancy -- Autonomy and genetic information -- Autonomy and organ transplantation -- Autonomy, consent, and the law.

This paper formulates a response to standard accounts of Kantian sexual morality, by first clarifying why sex should be understood as a case of using a person as a thing, rather than merely as a means. The author argues that Kant’s remedy to this problem is not sexual consent, but a model of setting and sharing sexual ends. Kant’s account of sexual morality, read in this way, is a critical framework for contemporary moves to think beyond consent, and (...) to grapple with concerns about sexual violation and “bad sex” that have gained uptake in the wake of the MeToo movement. The author defends an account of sex as a process of setting and sharing sexual ends in a Kantian key, which provides us with resources for thinking about the robust ongoing project of making our sexual selves in nonideal conditions, as well as for identifying the wrongs of both “bad” sex and sexual harassment. In doing so, they offer a critical middle ground between contemporary accounts of sexual morality that center questions of individual agency or autonomy, and those that foreground the intersubjective nature of sex. (shrink)

Several attempts have been made to transfer the concept of informed consent from medical and research ethics to dealing with affected groups in other areas such as engineering, land use planning, and business management. It is argued that these attempts are unsuccessful since the concept of informed consent is inadequate for situations in which groups of affected persons are dealt with collectively (rather than individually, as in clinical medicine). There are several reasons for this. The affected groups from (...) which informed consent is sought cannot be identified with sufficient precision. Informed consent is associated with individual veto power, but it does not appear realistic to give veto power to all individuals who are affected for instance by an engineering project. Most importantly, the concept of informed consent puts focus on the public’s acceptance of ready-made proposals rather than on its participation in the decision-making process as a whole, which includes the development of alternatives for the decision. Therefore, the concept of informed consent is not applicable to a company’s relations with groups and collectives. It may, however, be applicable to a company’s relations with individual persons such as customers and employees. (shrink)

Le Consentement meurtrier interroge au plus profond les racines de la violence. Celle-ci ne se résume pas à son exercice dans certains cas extrêmes : meurtres ou guerres. Elle a pour origine ce qui en chacun de nous déjà commence à pervertir le lien nécessaire entre l'éthique et les intérêts qui commandent toute action, personnelle ou plus généralement politique. Ainsi sommes-nous conduits à transiger en permanence avec le type de responsabilité qu'appellent pourtant de partout le secours, le soin et l'attention (...) exigés par la vulnérabilité et la mortalité d'autrui. Pour autant, un tel consentement n'est pas une fatalité, et ce livre explore aussi quelques-unes des voies qui permettent de s'en dégager : la révolte, la bonté, la critique et la honte. Sa méthode opte pour une démarche rarement explorée : soutenir la réflexion philosophique de sources littéraires (Camus, Zweig, Grossman, Kraus, Ôé) qui nous font pénétrer le surgissement d'un tel consentement plus finement que ne le feraient une théorie et ses concepts. (shrink)

There is currently intense debate about the significance of user consent to data practices. Consent is often taken to legitimate virtually any data practice, no matter how invasive. Many scholars argue, however, that user consent is typically so defective as to be ‘meaningless’ and that user privacy should thus be protected by substantive legislation that does not rely (or does not rely heavily) on consent. I argue that both views rest on serious mistakes about the validity (...) conditions for consent. User consent is sufficiently impoverished that it does not guarantee legitimacy but is not so impoverished as to be ‘meaningless’; it can legitimate data practices that are independently reasonable but not those that are exploitative. Since many valuable data practices must be consented to if they are to be legitimate (or so I argue), our privacy legislation should continue emphasizing the importance of user consent, even if auxiliary protections are also desirable. (shrink)

Opt-out systems of postmortal organ procurement are often referred to as ‘presumed consent’ systems. A presumption directs us, in a case in which no compelling evidence is available to hold that P, nevertheless to proceed as if P were true, unless there is sufficient evidence that it is false. It is recommended to presume consent in this case, because, in the absence of registered objections of the deceased, it is held to be more probable that she consented than (...) that she did not. Whether this suggestion makes sense, however, turns out to depend on the proper interpretation of the concept of ‘consent’. On a mental state conception of consent we are allowed to presume it if we have reason to suppose the deceased to have been in favour of donation. However, we should rather understand consent to be a public action of authorisation. On that view consent cannot be presumed, and the opt-out systems as we presently know them on the European continent and elsewhere do not satisfy the requirement that the deceased should have consented to the removal of his organs. (shrink)