Abstract

In the last thirty years, consent has emerged as a significant issue in the fields of clinical medicine, in research involving human subjects, and in medical malpractice litigation. Health care professionals, clinical researchers, and the courts have all been endeavoring to determine when a patient's consent to treatment or a prospective subject's consent to participate in research ought to be secured. In addition, they have attempted to determine what boundaries consent requirements set on a professional's prerogative to act as she sees fit. Although there is now general agreement that consent is an important part of health care and health law, there remain important practical disagreements. One's theoretical understanding of consent--what consent is, what purposes it serves, and how it is to be explained and justified--can have significant practical implications, its analysis and interpretation are not just matters of academic interest. All too often it is assumed that we have an agreed-upon and satisfactory understanding of consent and its moral significance. I argue that this assumption is mistaken. There are currently many competing accounts of consent which yield different answers to the question "What is the moral significance of consent?" In critically analyzing these various accounts, I find that although each one has its particular appeal, each suffers from serious theoretical problems. I proceed to conducting my own analysis of consent on the model of illocutionary acts. I argue that the point of giving consent is to forge a connection between the consent-giver and the subsequent action of the consent-receiver such that the action is ascribable to both of them. Consent thus "takes effect" by reapportioning ownership of the consent-receiver's action, which in turn results in the consent-giver coming to share moral responsibility for it. I conclude by briefly looking at some of the more important implications and benefits of this understanding of consent for the practice of health care and health law