Abstract
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.
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Notes
As noted above, the respondents were asked about their hypothetical preferences; they were not actually deciding on a course of treatment to be administered to them. But this does not seem to undermine the force of the example, since framing effects arise even when there are significant incentives to make a good choice: “Studies reported in the economic and psychological literature have shown that errors that are prevalent in responses to hypothetical questions persist even in the presence of significant monetary payoffs” (Tversky and Kahneman 2000, p. 221).
For example, some people hold that certain contracts should be enforced even if one of the parties does not have a robust understanding of the contract’s terms. For discussion, see Bix (2010).
This is what Heidi Hurd (1996) refers to as consent’s “moral magic.” See also Manson and O’Neill (2007, pp. 72–77). Kamm likewise claims that “[i]n ordinary morality, consent by the person to be harmed (when he is competent to give consent) can often justify acts that would otherwise be impermissible” (2007, p. 219). The PG model also seems to be presupposed by the maxim Volenti non fit injuria (“To one who consents no wrong is done”). For an endorsement of this maxim, see Feinberg (1984, pp. 115–117).
Thomson considers an example in which a boy is given a box of chocolates that he refuses to share with his younger brother. Although the younger brother has no right to the chocolates, the older brother may be “greedy, stingy, callous—but not unjust” (1971, p. 60).
Although I shall generally speak in terms of the validity of consent, the arguments below also apply, with slight modification, to dissent. Most philosophers believe that dissent, like consent, can be invalid. Consider, for example, a case in which an ill-informed or intoxicated patient dissents to a beneficial medical procedure, there is no time to remedy her deliberative defect, and there is good reason to believe that she would consent if she were informed and unimpaired.
Of course, there may be epistemic problems that make it difficult to determine which course of action would benefit Patient. But these problems do not give rise to a paradox of the sort that I argue plagues the PG model.
For my purposes, it is irrelevant whether consent is a “subjective state,” such as an intention, or a “performative.” The subjective state view is adopted by Hurd (1996, pp. 124–126) and Alexander (1996, p. 165). The performative view is adopted by Wertheimer (2003, pp. 144–152) and Kleinig (2010, pp. 9–11). Regardless of how this debate is settled, consent is always given under an act description, as is demonstrated by the examples below.
Cf. Westen (2004, p. 41), who discusses New York v. Hough, a case in which a man snuck into the bed of his identical twin brother in order to deceive the brother’s girlfriend to have intercourse with him.
If some rights are inalienable, there will be cases in which no act description is morally relevant, in the sense in which I am using this terminology. One cannot provide valid consent to an act if he is incapable of waiving his right against it.
What should we say about HIV Positive? Is A guilty of sexual assault if he failed to inform B of his HIV status? Our answer to this question will depend on how informed we believe a person must be in order validly to consent to sexual relations. Notice, further, that one might hold that B has not given her morally valid consent, even though A should not be subject to legal sanction. For relevant discussion, see Wertheimer (2003, Chapter 9). As I have indicated, I will focus in the remainder of the paper on contexts in which it is generally agreed that valid consent must meet fairly demanding informational requirements.
To be sure, there may be some cases in which one way of presenting information is more confusing or more difficult for recipients to register. For example, many people are better able to answer statistical problems when data is presented in a frequency format (x out of every y people have a certain problem) rather than a probability format (z percent of people have a certain problem). See Gigerenzer (2000, Chapter 4). But these concerns do not seem to arise in our example, in which the only difference is whether the risks are presented as mortality or survival rates.
I am indebted to Eric Chwang for this example.
Kahneman and Tversky discuss a study in which participants were asked to choose between two public programs for combating a disease. Many of the participants preferred different programs depending on whether the outcomes were framed as “lives saved” or “lives lost”: “Respondents confronted with their conflicting answers are typically puzzled. Even after rereading the problems, they still wish to be risk averse in the ‘lives saved’ version; they wish to be risk seeking in the ‘lives lost’ version; and they also wish to obey invariance and give consistent answers in the two versions” (Kahneman and Tversky 2000, p. 5).
The argument I have offered may seem to have an unfortunate implication in the following case. Suppose that A chooses to perform some act after he is told that there is a ninety percent chance that it will not harm other (non-consenting) people. Suppose that A would not have chosen to perform this act, however, if he had been told that there is a ten percent chance that it will harm another person. It seems clear that if A’s act does harm an innocent bystander, we may hold A responsible by punishing him or at least requiring him to pay compensation. It seems to me that there is an important difference between this case and Framing-Induced Consent. As we have seen, most defenders of the PG model believe that consent (to medical treatment, at least) is valid only if it is informed and unimpaired. But few people believe that an agent must meet these standards before he can be held liable to pay compensation for injuries he has caused to others. For example, while most philosophers would agree that a person cannot validly consent to surgery while intoxicated, most also believe that a person may be held responsible for drunken behavior that harms others. As I have already indicated, I am dealing only with contexts in which it is generally believed that valid consent must be informed and (relatively) unimpaired. The original objection was brought to my attention by David Boonin.
Both of these authors argue against hypothetical consent. I shall later distinguish hypothetical consent, as commonly invoked in the literature, from the disposition to consent that is at issue here. But the arguments advanced by Thomson and Brudney may apply to both of these notions.
A similar view of relevance is defended in Chwang (2010). This account of relevance also has legal support. As Faden and Beauchamp point out, “[c]ase law hinges almost entirely on whether disclosures about undesirable outcomes or risks have been made, and, if not, whether they represent tolerable outcomes under the circumstances or whether knowledge of them would have altered the patient’s intentions or behavior” (1986, p. 247, emphasis added).
Notice that this principle provides a sufficient condition of one’s being insufficiently informed; it does not provide necessary and sufficient conditions. I thus leave open the possibility that other informational limitations may compromise the validity of consent. I also leave it open just how likely it must be that some piece of information would change the subject’s mind before that information becomes relevant.
One might point out that the common name description provides at least one piece of information not included in the chemical name description: that the substance in question is commonly called “LSD.” Although this may be true, it does not challenge the conclusion I draw from the LSD case. For by the same token, the chemical name description provides information not included in the common name description: that the chemical name of the drug is “lysergic acid diethylamide.” Although each description may provide different information about the name of the substance, neither provides more information than the other. It is thus unclear what reason we could have for claiming that one can give valid consent only under the common name description. (Perhaps it will be suggested that one can give truly informed consent only when one has been given both names. But I have already argued against this sort of proposal, and it at any rate seems rather difficult to believe that the researchers are required to provide participants with the chemical name in order to obtain valid consent.) Further, and most importantly, the use of the name “LSD” likely influences decision-making by playing on the subjects’ emotions (Faden and Beauchamp 1986, p. 183) or changing the way they “think of” the test drug (Manson and O’Neill 2007, p. 13). Framing seems to affect decision-making in the same way. There thus appears to be no basis for sharply distinguishing the LSD case from the framing cases I have been discussing. I am indebted to a reviewer from this journal for feedback on this point.
Trout (2005) develops a very similar view, but he (wisely, I believe) refrains from describing it as “libertarian.”
Kuflik discusses the Saikewicz case, in which the court applied a “substituted judgment standard” to a man with a “mental age of approximately 2 years and 8 months” (2010, p. 143). Kuflik argues that the “best interests standard” should guide the treatment of such patients, and that this is a fundamentally different justification than that provided by the appeal to hypothetical consent (p. 144).
Gerald Dworkin has suggested that “[p]arental paternalism” towards children may be justified by “future-oriented consent,” or the child’s coming to “welcome” the interference when he is older (1971, p. 119). There are two points worth making about this suggestion. First, insofar as Dworkin appeals to the claim that the child actually will consent or come to welcome the parents’ intervention, his argument does not appeal to hypothetical consent. Second, appeals to subsequent consent have been subjected to a barrage of criticisms, including those raised by VanDeVeer (1986, pp. 66–70) and Husak (1981, pp. 33–35).
To be sure, Schwab (2006) does not claim that we can always rid people of their susceptibility to framing, and it is unclear how he believes we ought to proceed when we cannot do so.
We cannot always test for susceptibility to framing in this way; as I noted earlier, the order in which preferences are presented can affect decision-making, and only one alternative can be presented first.
It is not entirely clear from Feinberg’s discussion whether he believes that more harmful self-regarding choices must actually meet a higher standard of voluntariness, or whether he believes that we must merely be more confident that such choices meet a fixed standard. See Feinberg (1986, pp. 117 and 120).
As suggested above, opponents of paternalism generally reject the evidentiary model. This can be seen in their acceptance of the Volenti maxim described in n. 4 (Feinberg 1986, pp. 98–101, 176–178; VanDeVeer 1986, pp. 42–44). The Volenti maxim would justify the anti-paternalist view that we cannot intervene in harmful conduct to which someone consents on the grounds that such conduct wrongly harms her. Feinberg, who provides perhaps the most thorough treatment of paternalism in the literature, explicitly rejects the evidentiary model and claims that “the right of self-determination” is “entirely underivative” of one’s good (1986, p. 59). Thomson distinguishes claims against trespass, or “bodily intrusion,” from claims against harm (1990, p. 209). Since she holds that claims against trespass are “fundamental” (p. 212) and can be waived through consent, consent is important on her view for reasons other than its evidentiary role.
I gratefully acknowledge support from a Northern Illinois University Research and Artistry Grant. For helpful feedback, I am indebted to an audience at the 2010 Rocky Mountain Ethics Congress.
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Hanna, J. Consent and the Problem of Framing Effects. Ethic Theory Moral Prac 14, 517–531 (2011). https://doi.org/10.1007/s10677-011-9266-y
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DOI: https://doi.org/10.1007/s10677-011-9266-y