The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is (...) grounded on sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.

A popular introduction to common consent arguments for belief in God.

In an earlier Dissecting Bioethics contribution, Debra J. H. Mathews, Joseph J. Fins, and Eric Racine challenge standard ways of thinking about the therapeutic misconception in the context of consent for research participation. They propose that instead of demanding “rational congruence” between how researchers and participants conceive of a given protocol, we should accept a less stringent standard of “reasonable coherence.” While Mathews, Fins, and Racine (MFR) provide some important insights, their proposal needs refinement. There is room for a (...) wide but not unlimited range of participant hopes and motivations. However, their model of reasonable coherence is too weak a standard for whether participants have adequate understanding of the scientific goals of a protocol. By the time participants are recruited for medical research, the goals of the protocol, having been set and agreed to through accepted scientific processes, are no longer open for alternate interpretations. This paper discusses this and other objections to MFR’s proposal. It then suggests that a concept of “deal breakers” might be useful in this context. (shrink)

In the few decades a new conception of liberalism has arisen—the “public reason view” — which developed out of contractualist approaches to justifying liberalism. The social contract theories of Hobbes, Locke and Rousseau all stressed that the justification of the state depended on showing that everyone would, in some way, consent to it. By relying on consent, social contract theory seemed to suppose a voluntarist conception of political justice: what is just depends on what people choose to agree (...) to — what they will. As Hume famously pointed out, such accounts seem to imply that ultimately political justice derives from promissory obligations, which the social contract theory leaves unexplained.1 Only in Kant, I think, does it become clear that consent is not fundamental to a social contract view: we have a duty to agree to act according to the idea of the “original contract.”2 Rawls’s revival of social contract theory in A Theory of Justice also made no important appeal to consent, though the apparatus of an “original agreement” of sorts persisted. The aim of the original position, Rawls announced, is to settle “the question of justification…by working out a problem of deliberation.”3 As the question of public justification takes center stage (we might say as contractualist liberalism becomes justificatory liberalism), it becomes clear that posing the problem of justification in terms of a deliberative or a bargaining problem is simply a heuristic: the real issue.. (shrink)

Until recently, epistemology was largely caught in the grips of an epistemically unrealistic radical epistemological individualism on which the beliefs and testimony of others were of virtually no epistemic significance. Thankfully, epistemologists have bucked the individualist trend, acknowledging that one person's belief or testimony that P might offer another person prima facie epistemic reasons – or social evidence as I call it – to believe P. In this paper, I discuss the possibility and conditions under which beliefs and testimony (...) act as social evidence, in particular, beliefs and testimony regarding the existence of God. The epistemic egoist maintains that one must possess positive reasons in favor of other people's reliability or trustworthiness before their beliefs and testimony offer prima facie social evidence. The epistemic universalist, on the other hand, argues that the beliefs of all others are prima facie credible and should be treated accordingly. All this will set up subsequent discussion of the epistemic significance of common consent or widespread belief in God. I show how common consent arguments assume the epistemic universalist's account of the conditions under which the beliefs and testimony of others acquire reason-giving force as social evidence. (shrink)

An important role of the philosopher is to critically reflect on what is often taken for granted, using the tools of argument and analysis. This article engages with six different papers that offer critical reflections on conventional concepts and beliefs in bioethics regarding informed consent, continuous deep sedation, traditional moral theories underlying bioethical thinking, the definition of mental disease, and codes of ethics for particular medical specialties.

BackgroundThe Western-European concept of libertarian rights-based autonomy, which advocates respect for individual rights, may conflict with African cultural values and norms. African communitarian ethics focuses on the interests of the collective whole or community, rather than rugged individualism. Hence collective decision-making processes take precedence over individual autonomy or consent. This apparent conflict may impact informed consent practice during biomedical research in African communities and may hinder ethical principlism in African bioethics. This study explored African biomedical researchers' perspectives regarding (...) informed consent and potential limitations to the principle of respect for autonomy in African communities.MethodsWe conducted a qualitative study based on in-depth interviews with 12 biomedical researchers, five females and seven males aged 34 to 74 years, currently working at an African university. Interviews lasted 35–40 min each and involved semi-structured open-ended interviews, which allowed participants to offer information about their perceptions and feelings regarding respect for autonomy and informed consent as practised in Africa. Empirical data from the interviews were recorded, transcribed, and analysed using thematic content analysis, together with an interrogation of relevant scientific literature about African communitarian ethics, making evaluations and drawing inferences consistent with the empirical bioethics approach.ResultsBased on these interviews and analysis of relevant literature, we found that informed consent is difficult to apply in an African context because it derives from a Western conception of libertarian rights-based autonomy. Most respondents pointed out that it was challenging to implement informed consent in the African setting. Furthermore, communalism, customary beliefs, spirituality, and relational autonomy are predominant in most African communities, as exemplified by the African moral philosophies of Ubuntu/botho and Ukama, which emphasize communitarianism over individual rights. We also found that language, education, poverty, and cultural beliefs are barriers to obtaining proper informed consent in African communities.ConclusionsWe conclude that there are limitations to applying the principle of respect for autonomy and informed consent in African communities, especially in the context of human biomedical research. We recommend using a more relational approach, such as Ross’s prima facie duties, to implement informed consent in African communities. (shrink)

Background Reasonable disagreement about the role awarded to gamete donors in decision-making on the use of embryos created by gamete donation for research purposes emphasises the importance of considering the implementation of participatory, adaptive, and trustworthy policies and guidelines for consent procedures. However, the perspectives of gamete donors and recipients about decision-making regarding research with EGDs are still under-researched, which precludes the development of policies and guidelines informed by evidence. This study seeks to explore the views of donors and (...) recipients about who should take part in consent processes for the use of EGDs in research. Methods From July 2017 to June 2018, 72 gamete donors and 175 recipients completed a self-report structured questionnaire at the Portuguese Public Bank of Gametes. Agreement with dual consent was defined as the belief that the use of EGDs in research should be consented by both donors and recipients. Results The majority of participants were willing to donate embryos for research. Almost half of the donors and half of the recipients considered that a dual consent procedure is desirable. This view was more frequent among employed recipients than among non-employed. Donors were less likely to believe that only recipients should be involved in giving consent for the use of EGDs in research and were more frequently favourable to the idea of exclusive donors’ consent. Conclusions Divergent views on dual consent among donors and recipients indicate the need to develop evidence-based and ethically sustainable policies and guidelines to protect well-being, autonomy and reproductive rights of both stakeholder groups. More empirical research and further theoretical normative analyses are needed to inform people-centred policy and guidelines for shared decision-making concerning the use of EGDs for research. (shrink)

The exculpatory rhetorical power of the term “honest belief” continues to invite reliance on the bare credibility of belief in consent to determine culpability in sexual assault. In law, however, only a comprehensive analysis of mens rea, including an examination of the material facts and circumstances of which the accused was aware, demonstrates whether a “belief” in consent was or was not reckless or wilfully blind. An accused's “honest belief” routinely begs this question, leading (...) to a truncated analysis of criminal responsibility, and error. The problem illustrates how easily old rhetoric perpetuates assumptions that no longer have a place in Canadian law. (shrink)

Our aim is to expand the regulative ideal governing consent. We argue that consent should not only be informed but also based on rational beliefs. We argue that holding true beliefs promotes autonomy. Information is important insofar as it helps a person to hold the relevant true beliefs. But in order to hold the relevant true beliefs, competent people must also think rationally. Insofar as information is important, rational deliberation is important. Just as physicians should aim to provide (...) relevant information regarding the medical procedures prior to patients consenting to have those procedures, they should also assist patients to think more rationally. We distinguish between rational choice/action and rational belief. While autonomous choice need not necessarily be rational, it should be based on rational belief. The implication for the doctrine of informed consent and the practice of medicine is that, if physicians are to respect patient autonomy and help patients to choose and act more rationally, not only must they provide information, but they should care more about the theoretical rationality of their patients. They should not abandon their patients to irrationality. They should help their patients to deliberate more effectively and to care more about thinking rationally. We illustrate these arguments in the context of Jehovah's Witnesses refusing life-saving blood transfusions. Insofar as Jehovah's Witnesses should be informed of the consequences of their actions, they should also deliberate rationally about these consequences. (shrink)

Background: Seeking consent for genetic and genomic research can be challenging, particularly in populations with low literacy levels, and in emergency situations. All of these factors were relevant to the MalariaGEN study of genetic factors influencing immune responses to malaria in northern rural Ghana. This study sought to identify issues arising in practice during the enrolment of paediatric cases with severe malaria and matched healthy controls into the MalariaGEN study. Methods: The study used a rapid assessment incorporating multiple qualitative (...) methods including in depth interviews, focus group discussions and observations of consent processes. Differences between verbal information provided during community engagement processes, and consent processes during the enrolment of cases and controls were identified, as well as the factors influencing the tailoring of such information. Results: MalariaGEN participants and field staff seeking consent were generally satisfied with their understanding of the project and were familiar with aspects of the study relating to malaria. Some genetic aspects of the study were also well understood. Participants and staff seeking consent were less aware of the methodologies employed during genomic research and their implications, such as the breadth of data generated and the potential for future secondary research.Moreover, trust in and previous experience with the Navrongo Health Research Centre which was conducting the research influenced beliefs about the benefits of participating in the MalariaGEN study and subsequent decision-making about research participation. Conclusions: It is important to recognise that some aspects of complex genomic research may be of less interest to and less well understood by research participants and that such gaps in understanding may not be entirely addressed by best practice in the design and conduct of consent processes. In such circumstances consideration needs to be given to additional protections for participants that may need to be implemented in such research, and how best to provide such protections.Capacity building for research ethics committees with limited familiarity with genetic and genomic research, and appropriate engagement with communities to elicit opinions of the ethical issues arising and acceptability of downstream uses of genome wide association data are likely to be important. (shrink)

We examined differences in the knowledge and beliefs that exist among nurse researchers in the USA (n = 119) regarding informed consent and the use of data from patients’ medical records. Using a mail survey, two domains of ethical knowledge and beliefs were assessed: the legal right to privacy and the moral right to privacy. More than half of the participants were very confident in their knowledge of institutional review board procedures, research ethics, informed consent, the legal right (...) to privacy, and the moral right to privacy. In contrast, most rated themselves as uncertain about US federal research regulations and there was wide variation in knowledge about current federal guidelines. Those who were more confident in their knowledge of or had more practical experience with research ethics, were no more likely to answer correctly a question about current federal guidelines regulating the use of patient data from medical records than those who reported less confidence or experience. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical (...) autonomy, rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

The gendered subcultures of our society may have different value systems. Consequently, sexual activity that involves members of these subcultures may be problematic, especially concerning the encoding and decoding of consent. This has serious consequences for labelling the activity as sex or sexual assault. Conceiving consent not as a mental act but as a behavioural act (that is, using a performative standard) would eliminate these problems. However, if we remove the mental element from one aspect, then to be (...) consistent we must remove it from all; and, as a result, the “mistaken belief” defense would be eliminated and mens rea would become insignificant (in other words, if what the woman means is irrelevant, then what the man believes or intends should also be irrelevant). This consequence suggests major changes to our current conceptions of legal justice, which changes, if undesirable, prompt reconsideration of the initial proposal to use a performative standard for consent. (shrink)

When Jean-Paul Sartre, the French existentialist philosopher, declared some four decades ago that man makes himself, this assertion was based on Sartre's belief that human beings do not possess an essential human nature. Man's self creation had to do with his freedom to choose the roles that he played or could play, and their attendant effects on his attitudes and responsibilities. It said nothing about his freedom to alter his biological nature.

Epistemology, as I understand it, is a branch of philosophy especially concerned with general questions about how we can know various things or at least justify our beliefs about them. It questions what counts as evidence and what are reasonable sources of doubt. Traditionally, episte-mology focuses on pervasive and apparently basic assumptions covering a wide range of claims to knowledge or justified belief rather than very specific, practical puzzles. For example, traditional epistemologists ask “How do we know there are (...) material objects?” and not “How do you know which are the female beetles?” Similarly,moralepistemology, as I understand it, is concerned with general questions about how we can know or justify our beliefs about moral matters. Its focus, again, is on quite general, pervasive, and apparently basic assumptions about what counts as evidence, what are reasonable sources of doubt, and what are the appropriate procedures for justifying particular moral claims. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake (...) about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

Arguments involve, at minimum, attempts at presenting something that an audience will take to be a reason. Reasons, once understood, affect an addressee’s beliefs in ways that are in some significant sense outside of their direct voluntary control. Since such changes may impact the well-being, life projects, or sense of self of the addressee, they risk infringing upon their autonomy. We call this the “autonomy worry” of argumentation. In light of this worry, this paper asks whether one ought to seek (...) an addressee’s consent before arguing with them. We first consider the view that arguing of any sort and on any topic requires consent. However, such a view is extreme, and we reject the general requirement of consent because argument contains its own internal permission structure. We find, however, that this permission structure is not always operative, and that consent may nonetheless be morally required in certain kinds of cases. (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)

Deception, like coercion, can invalidate the moral force of consent. In the sexual domain, when someone is deceived about some feature of their partner, knowledge of which would be dispositive of their decision to have sex – a dealbreaker – the moral validity of their consent is undermined. I argue that in order to determine whether someone has discharged their duties of disclosure in the sexual domain, we should ask whether, upon receiving a token of consent to (...) sex, they have a justified belief that their partner would consent to the sexual encounter given all the features that it has. I argue that whether an agent has a justified belief in this proposition is a function of the agent’s body of evidence and which alternatives uneliminated. (shrink)

Biomedical research has made tremendous advances during the last decade in improving human health and well being. In spite of these advances, research has encountered serious emerging challenges as it moves across boarders and confronts different societies with different cultural practices, beliefs, moral thoughts and different values. A pervasive and perplexing issue affecting the current advances in research is the perception that research might end up exploiting populations unless it is conducted in the context of a strong ethical framework. Furthermore, (...) informed consent has increasingly become a thorny area for researchers when considering what should be done when introducing the process into a community, especially if the process might destroy the traditional value system and customs of the community. In this paper, I argue that community consent is an unethical process which should be subverted for community dialogue and community education in research in Africa. (shrink)

Unrealistic therapeutic beliefs are very common—the majority of patient-subjects enrol in phase 1 trials seeking and expecting significant medical benefit, even though the likelihood of such benefit has historically proven very low. The high prevalence of therapeutic misestimation and unrealistic optimism in particular has stimulated debate about whether unrealistic therapeutic beliefs in early-phase clinical trials preclude adequate informed consent. We seek here to help resolve this controversy by showing that a crucial determination of when such therapeutic beliefs are ethically (...) problematic turns on whether they are causally linked and instrumental to the motivation to participate in the trial. Thus, in practice, it is ethically incumbent on researchers to determine which understanding and beliefs lead to the participant’s primary motivation for enrolling, not to simply assess understanding, beliefs and motivations independently. We further contend that assessing patient-subjects’ appreciation as a component of informed consent—it is already an established component of decision-making capacity assessments—can help elucidate the link between understanding-beliefs and motivation; appreciation refers to an individual’s understanding of the personal significance of both the medical facts and the experience of trial participation. Therefore, we recommend that: in addition to the usual question, ‘Why do you want to participate in this trial?’, all potential participants should be asked the question: ‘What are you giving up by participating in this trial?’ and researchers should consider the settings in which it may be possible and practical to obtain ‘two-point consent’. (shrink)

This is a qualitative study of the role of gender and emotion in a political setting. The data are from interviews of activists and legislators, as well as from archival accounts of the debates in state legislatures about breast cancer informed consent legislation. I found that proponents for and against the legislation shared the belief that women are more emotional than men. This social belief shaped the political strategies the activists adopted and initially contributed to their effectiveness; (...) however, their opponents claimed that the women activists should be dismissed because their emotionalism made them irrational. I close by discussing Western cultural beliefs about emotions, social stereotypes regarding women, and their consequences for women activists in political arenas. (shrink)

Consider the following examples of behavior by Smith: 1. Smith, seated at her restaurant table, gives an order to the waiter; 2. Smith gets into a cab and names a destination; 3. Smith agrees to Jones's suggestion that they go back to Jones's apartment for a few drinks; 4. Smith casts her vote in some election. In each of these instances what can Smith be understood as consenting to? Is she consenting to pay the bill for whatever meal she orders; (...) pay the fare for the journey to her named destination; sexual intimacy with Jones; and accept the authority of whatever individual or political part is elected? The fact that Smith does not actually express her consent to each of these states of affairs or outcomes need not mean that she is not giving her consent to them. The idea that individuals can give their consent in ways other than by means of a formal verbal expression of agreement is a familiar, if controversial, one. (shrink)

Consider the following examples of behavior by Smith: 1. Smith, seated at her restaurant table, gives an order to the waiter; 2. Smith gets into a cab and names a destination; 3. Smith agrees to Jones's suggestion that they go back to Jones's apartment for a few drinks; 4. Smith casts her vote in some election. In each of these instances what can Smith be understood as consenting to? Is she consenting to pay the bill for whatever meal she orders; (...) pay the fare for the journey to her named destination; sexual intimacy with Jones; and accept the authority of whatever individual or political part is elected? The fact that Smith does not actually express her consent to each of these states of affairs or outcomes need not mean that she is not giving her consent to them. The idea that individuals can give their consent in ways other than by means of a formal verbal expression of agreement is a familiar, if controversial, one. (shrink)

Although tissue plasminogen activator (tPA) is the only medication approved by the United States Food and Drug Administration (FDA) for acute ischemic stroke, there is no consensus about the need for informed consent for its use. As a result, hospitals throughout the U.S. have varying requirements regarding obtaining informed consent from patients for the use of tPA, ranging from no requirement for informed consent to a requirement for verbal or written informed consent. We conducted a study (...) to (1) determine current beliefs about obtaining patients’ informed consent for tPA among a large group of stroke clinicians and (2) identify the ethical, clinical, and organizational factors that influence tPA consent practices. Semi-structured interviews were conducted by trained and experienced investigators and research staff to identify key barriers to implementing acute stroke services. Part of the interview explored current beliefs and practices around informed consent for tPA.This was a multicenter study that included 38 Veterans Health Administration (VHA) hospital locations. Participants were 68 stroke team clinicians, serving primarily on the neurology (35 percent) or emergency medicine (41 percent) service. We conducted thematic analysis based on principles of grounded theory to identify codes about consent for tPA. We used interpretive convergence to ensure consistency among the individual investigators’ codes and to ensure that all of the investigators agreed on coding and themes.We found that 38 percent of the stroke clinicians did not believe any form of consent was necessary for tPA, 47 percent thought that some form of consent was necessary, and 15 percent were unsure. Clinicians who believed tPA required informed consent were divided on whether consent should be written (40 percent) or verbal (60 percent). We identified three factors describing clinicians’ attitudes about consent: (1) legal and policy factors, (2) ethical factors, and (3) medical factors.The lack of consensus regarding consent for tPA creates the potential for delays in treatment, uneasiness among clinicians, and legal liability. The identified factors provide a potential framework to guide discussions about developing a standard of care for acquiring the informed consent of patients for the administration of tPA. (shrink)

The common consent argument claims that widespread belief in God is good evidence for God’s existence. Though taken seriously throughout the history of philosophy, the argument died in the 1800s. Our philosophy of religion textbooks ignore it. In this paper, we hope to resuscitate it drawing upon the demographics of religious belief, the cognitive science of religion, and contemporary epistemology. We develop and defend two common consent arguments, which maintain that widespread belief in a High (...) God is good evidence for theism over metaphysical naturalism. (shrink)

BackgroundResearchers conducting community-based participatory action research (CBPAR) in highly collectivistic and socioeconomically disadvantaged community settings in sub-Saharan Africa are confronted with the distinctive challenge of balancing universal ethical standards with local standards, where traditional customs or beliefs may conflict with regulatory requirements and ethical guidelines underlying the informed consent (IC) process. The unique ethnic, socioeconomic, and cultural diversities in these settings have important implications for the IC process, such as individual decisional autonomy, beneficence, confidentiality, and signing the IC document.Main (...) textDrawing on insights and field observations from conducting CBPARs across several rural, highly communal, low literate, and low-income communities in Ghana, we discuss some theoretical, ethico-cultural, and methodological challenges associated with applying the universal, Western individualistic cultural value-laden IC process in sub-Saharan Africa. By citing field situations, we discuss how local cultural customs and the socioeconomic adversities prevalent in these settings can influence (and disrupt) the information disclosure process, individual decisional authority for consent, and voluntariness. We review the theoretical assumptions of the Declaration of Helsinki’s statement on IC and discuss its limitations as an ultimate guide for the conduct of social science research in the highly communal African context. We argue that the IC process in these settings should include strategies directed at preventing deception and coercion, in addition to ensuring respect for individual autonomy. We urge Universities, research institutions, and institutional review boards in Africa to design and promote the use of context-appropriate ethical IC guidelines that take into consideration both the local customs and traditional practices of the people as well as the scientific principles underpinning the universal IC standards.ConclusionWe recommend that, rather than adopt a universal one-size-fits-all IC approach, researchers working in the rural, highly collectivistic, low literate, socioeconomically disadvantaged settings of sub-Saharan Africa should deeply consider the roles and influence of cultural values and traditional practices on the IC and the research process. We encourage researchers to collaborate with target communities and stakeholders in the design and implementation of context-appropriate IC to prevent ethics dumping and safeguard the integrity of the research process. (shrink)

The Mental Capacity Act 2005 has provided unified scope in the British medical system for proxy consent with regard to medical decisions, in the form of a lasting power of attorney. While the intentions are to increase the autonomous decision making powers of those unable to consent, the author of this paper argues that the whole notion of proxy consent collapses into a paternalistic judgement regarding the other person’s best interests and that the new legislation introduces only (...) an advisor, not a proxy with the moral authority to make treatment decisions on behalf of another. The criticism is threefold. First, there is good empirical evidence that people are poor proxy decision makers as regards accurately representing other people’s desires and wishes, and this is therefore a pragmatically inadequate method of gaining consent. Second, philosophical theory explaining how we represent other people’s thought processes indicates that we are unlikely ever to achieve accurate simulations of others’ wishes in making a proxy decision. Third, even if we could accurately simulate other people’s beliefs and wishes, the current construction of proxy consent in the Mental Capacity Act means that it has no significant ethical authority to match that of autonomous decision making. Instead, it is governed by a professional, paternalistic, best-interests judgement that undermines the intended role of a proxy decision maker. The author argues in favour of clearly adopting the paternalistic best-interests option and viewing the proxy as solely an advisor to the professional medical team in helping make best-interests judgements. (shrink)

Both ethicists and lawyers accept that a provider – be it a researcher or a clinician – should provide sufficient information for a reasonable person to make an informed decision about whether they wish to go ahead with the proposed intervention or treatment.1 They are bound to do so both because they have an ethical responsibility to preserve the individual’s autonomous decision making, and, in many countries, because the law obliges them to. In this month’s issue of the JME, three (...) articles tackle ethical issues relating to consent in different contexts. Overarching these analyses is the pragmatic question of whether the process of taking consent in itself might alter the outcomes, and whether, in doing so, it can undermine the initial therapeutic or research goal – so creating another ethical question of what to prioritise. Psilocybin is entering Phase III trials to evaluate its effect on treatment resistant depression and cancer related depression and anxiety; earlier trials have shown sustained symptom reduction in these populations. Smith and Sisti examine whether a form of enhanced consent is ethically required for these drugs.2 They explore how to adequately consent for ‘therapeutic touch’ in a future altered state; the rare but significant mental health risks including trauma re-exposure; and the potential for a personality change given the intense experiences which many subjects have reported. They illustrate the potential for personality change with an example regarding the spiritual experiences which can occur with serotonergic psychedelics, and suggest that ‘agnostic or atheist patients may take the development of a newfound sense of spirituality or belief in God to …. (shrink)

Consented autopsy is almost non-existent in the Middle-East where established social and cultural beliefs regarding the procedure might discourage family members from requesting a consented autopsy. Evidence suggests that new information is obtained from consented autopsies. It would not be in the best interest of medicine if social and cultural misconceptions succeed in erasing the existence of consented autopsies entirely.

Autism is a chronic neurodevelopmental disorder that presents unique challenges to bioethicists. In particular, bioethicists ought to reconsider pediatric consent in light of disparity between beliefs that are held about the disorder by parents and adults with autism. The neurodiverse community ought to be given some consideration in this debate, and, as such, there may be a role for autistic narratives in clarifying this problem.

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, (...) with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

Background:Advance care planning gives patients and their family members the possibility to consider and make decisions regarding future care and medical procedures.Aim:To explore the view of people in the early stage of dementia on planning for future care.Research design:The study is a qualitative interview study with a semistructured interview guide. The data were analyzed according to the Qualitative Analysis Guide of Leuven.Participants and research context:Dementia nurses assisted in the recruiting of people with dementia for participation in the study. Study information (...) was mailed to 95 people with early stage dementia. Ten people with dementia and eight caregiver spouses participated in the study.Ethical considerations:People with dementia belong to a vulnerable patient group, and care was taken in the areas of informed consent and accessible information.Findings:The views of people with dementia are characterized by a complex storyline involving tensions and movement within the themes of wants, beliefs, and levels of insight. Participants wanted to think about the future but also wanted to live in the here and now.Discussion:High demands are placed on the advance care planning process for people with dementia and their family caregivers. A dignity-enhancing approach in dementia care emphasizes the dignity of and respect for this vulnerable and care-dependent patient group.Conclusion:The process of advance care planning in dementia care needs to go beyond person-centered care to a relationship-centered process. The illness trajectory and the impact on autonomy need to be taken into consideration. (shrink)

ObjectiveInformed consent is a prerequisite for caesarean section, the commonest surgical procedure in low- and middle-income settings, but not always acquired to an appropriate extent. Exploring perceptions of health care workers may aid in improving clinical practice around informed consent. We aim to explore health workers’ beliefs and experiences related to principles and practice of informed consent.MethodsQualitative study conducted between January and June 2018 in a rural 150-bed mission hospital in Southern Malawi. Clinical observations, semi-structured interviews and (...) a focus group discussion were used to collect data. Participants were 22 clinical officers, nurse-midwives and midwifery students involved in maternity care. Data were analysed to identify themes and construct an analytical framework.ResultsDefinition and purpose of informed consent revolved around providing information, respecting women’s autonomy and achieving legal protection. Due to fear of blame and litigation, health workers preferred written consent. Written consent requires active participation by the consenting individual and was perceived to transfer liability to that person. A woman’s refusal to provide written informed consent may pose a dilemma for the health worker between doing good and respecting autonomy. To prevent such refusal, health workers said to only partially disclose surgical risks in order to minimize women's anxiety. Commonly perceived barriers to obtain a fully informed consent were labour pains, language barriers, women’s lack of education and their dependency on others to make decisions.ConclusionsHealth workers are familiar with the principles around informed consent and aware of its advantages, but fear of blame and litigation, partial disclosure of risks and barriers to communication hamper the process of obtaining informed consent. Findings can be used to develop interventions to improve the informed consent process. (shrink)

Philosophers have become newly interested in the ethics of sex. One promising feature of this new discussion is that it has been broadening our moral lens to include individuals whose sexual interests have historically been denied or ignored. One such group is the elderly. Contrary to popular belief, many elderly people want to have sex and see it as a regular part of their lives. If society harbors ignorance about or prejudice against elderly sexuality, it harbors stronger views against (...) the sexual expression of elderly people with dementia. People with dementia are often prohibited by nursing‐home staff, sometimes in extreme ways, from having sex with their partners. This prohibition is at least partly motivated by the goal of protecting the vulnerable. However, cutting people with dementia off from sex has negative health effects and is a needless restriction of their autonomy. In this article, I argue that the expanding moral lens in sexual ethics should include the sexual expression of elderly individuals with dementia and that their sexual expression should be respected. Specifically, I argue that many people with dementia are competent to consent to sexual activity with their long‐term partners. (shrink)

In this volume philosophers from throughout the Asia-Pacific region discuss a wide range of topics related to the development of democratic values and ways of life. The papers explore ideas, values and practices related to democracy from the different perspectives of the great religious and philosophical traditions of Asia, as well as considering both philosophical issues and the place of philosophy in a democratic society. While the contributors represent different philosophical traditions, they are connected through a common concern with humanity, (...) a belief in the value of philosophical inquiry and scholarship and by a commitment to the value of philosophy education in building and sustaining democracy. (shrink)

This chapter contains sections titled: Animal Spirits Divine Consent Let's Make a Deal.

What is it for a state, constitution or set of governmental institutions to have political legitimacy? This paper raises some doubts about two broadly liberal answers to this question, which can be labelled ?Kantian? and ?libertarian?. The argument focuses in particular on the relationship between legitimacy and principles of justice and on the place of consent. By contrast with these views, I suggest that, without endorsing the kind of voluntarist theory, according to which political legitimacy is simply created by (...) individual consent, an adequate understanding of political legitimacy should take much more account than most philosophical theories tend to do of the attitudes and beliefs of citizens and the social and political context in which they have saliency. This also involves acknowledging the limits of theory in determining criteria of political legitimacy. (shrink)