In the first work of investigative journalism in decades to give a comprehensive view into contemporary psychiatric incarceration and forced interventions, Your Consent Is Not Required exposes how rising numbers of people from many walks of life are being subjected against their will to surveillance, indefinite detention, and powerful tranquilizing drugs, restraints, seclusion, and electroshock.

An examination of case law on forced marriage reveals that in addition to physical force, the role of emotional pressure is now taken into consideration. However, in both legal and policy discourse, the difference between arranged and forced marriage continues to be framed in binary terms and hinges on the concept of consent: the context in which consent is constructed largely remains unexplored. By examining the socio-cultural construction of personhood, especially womanhood, and the intersecting structural inequalities (...) that constrain particular groups of South Asian women in the UK, we argue that consent and coercion in relation to marriage can be better understood as two ends of a continuum, between which lie degrees of socio-cultural expectation, control, persuasion, pressure, threat and force. Women who face these constraints exercise their agency in complex and contradictory ways that are not always recognised by the existing exit-centred state initiatives designed to tackle this problem. (shrink)

This article starts by examining the appeal to hypothetical consent as used by law and economics writers. I argue that their use of this kind of argument has no moral force whatever. I then briefly examine, through some remarks on Rawls and Scanlon, the conditions under which such an argument would have moral force. Finally, I bring these considerations to bear to criticize the argument of judge Frank Easterbrook's majority opinion in Flamm v. Eberstadt.

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)

One way of increasing the supply of organs available for transplant would be to switch to an opt-out system of donor registration. This is typically assumed to operate on the basis of presumed consent, but this faces the objection that not all of those who fail to opt out would actually consent to the use of their cadaveric organs. This paper defuses this objection, arguing that people's actual, explicit or implicit, consent to use their organs is not (...) needed. It borrows David Estlund's notion of ‘normative consent’ from the justification of political authority and applies it to the case of organ donation. According to this idea, when it is wrong to withhold consent to something, the moral force of that lack of consent may be null and void. If it is wrong of a person to refuse to donate their cadaveric organs to others, then it may be that their actual consent is not needed. This supports an opt-out system, which provides protection for those who have genuine reasons to refuse donation, and spares the worries as to what the deceased would actually have wanted. (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)

Importance Informed consent is essential to ethical, rigorous research and is important to recruitment and retention in cancer trials.Objective To examine cancer clinical trial (CCT) participants’ perceptions of informed consent processes and variations in perceptions by cancer type.Design and Setting and Participants Cross-sectional survey from mixed-methods study at National Cancer Institute–designated Northeast comprehensive cancer center. Open-ended and forced-choice items addressed: (1) enrollment and informed consent experiences and (2) decision-making processes, including risk-benefit assessment. Eligibility: CCT participant with (...) gastro-intestinal or genitourinary, hematologic-lymphatic malignancies, lung cancer, and breast or gynecological cancer (N = 334).Main Outcome Measures Percentages satisfied with consent process and information provided; and assessing participation’s perceptions of risks/benefits. Multivariable logistic or ordinal regression examined differences by cancer type.Results Most patient-participants felt well informed by the consent process (more than 90% overall and by cancer type) and. most (87.4%) reported that the consent form provided all the information they wanted, although nearly half (44.8%) reported that they read the form somewhat carefully or less. More than half (57.9%) said that talking to research staff (i.e., the consent process) had a greater impact on participation decisions than reading the consent form (2.1%). A third (31.1%) were very sure of joining in research studies before the informed consent process (almost half of lung cancer patients did—47.1%). Most patients personally assessed the risks and benefits before consenting. However, trust in physicians played an important role in the decision to enroll in CCT.Conclusions and Relevance Cancer patients rely less on written features of the informed consent process than on information obtained from the research staff and their own physicians. Research should focus on information and communication strategies that support informed consent from referring physicians, researchers, and others to improve patient risk-benefit assessment and decision-making. (shrink)

In this article I will argue first that if ignorance poses a problem for valid consent in medical contexts then framing effects do too, and second that the problem posed by framing effects can be solved by eliminating those effects. My position is thus a mean between two mistaken extremes. At one mistaken extreme, framing effects are so trivial that they never impinge on the moral force of consent. This is as mistaken as thinking that ignorance is so (...) trivial that it never impinges on the moral force of consent. At the other mistaken extreme, framing effects are so serious that their existence shows that consent has no independent moral force. This is as mistaken as the idea that ignorance is so serious that its existence shows that consent has no independent moral force. I will argue that, instead of endorsing either of these mistaken extreme views, we should instead endorse a moderate view according to which framing effects sometimes pose a serious challenge for the validity of consent, just as ignorance does, but one which we can solve by eliminating the effect, just as we can solve the problem of ignorance by eliminating it. (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)

Rare Disease research has seen tremendous advancements over the last decades, with the development of new technologies, various global collaborative efforts and improved data sharing. To maximize the impact of and to further build on these developments, there is a need for model consent clauses for rare diseases research, in order to improve data interoperability, to meet the informational needs of participants, and to ensure proper ethical and legal use of data sources and participants’ overall protection. A global Task (...) Force was set up to develop model consent clauses specific to rare diseases research, that are comprehensive, harmonized, readily accessible, and internationally applicable, facilitating the recruitment and consent of rare disease research participants around the world. Existing consent forms and notices of consent were analyzed and classified under different consent themes, which were used as background to develop the model consent clauses. The IRDiRC-GA4GH MCC Task Force met in September 2018, to discuss and design model consent clauses. Based on analyzed consent forms, they listed generic core elements and designed the following rare disease research specific core elements; Rare Disease Research Introductory Clause, Familial Participation, Audio/Visual Imaging, Collecting, storing, sharing of rare disease data, Recontact for matching, Data Linkage, Return of Results to Family Members, Incapacity/Death, and Benefits. The model consent clauses presented in this article have been drafted to highlight consent elements that bear in mind the trends in rare disease research, while providing a tool to help foster harmonization and collaborative efforts. (shrink)

Though historically important, the notion of tacit consent plays little role in contemporary discussions of political legitimacy. The idea, in fact, is often dismissed as obviously implausible. The ambition of this paper is to challenge this assumption and show that tacit consent can become a key ingredient in a theory of legitimacy. Instead of defining tacit consent through residence (where, according to John Locke or Plato's Socrates, staying in the country amounts to tacitly consenting to its system (...) of rule), the paper explores a different strategy, delimiting tacit consent as an absence of active dissent. The basic idea starts from the fact that widespread anti-government protests and demonstrations always carry a potent delegitimating force. Political legitimacy is therefore never permanent and unchangeable, regardless of the nature of the regime, and can be undermined at all times by active dissent from the population. Having established the relationship between dissent and delegitimation of political power, even the inverted, stronger claim is defended: the absence of active dissent (i.e., tacit consent) can, under certain circumstances, serve to legitimize political power. The paper sets up and defends several conditions that need to be met for the right normative mandate to be created by the population tacitly accepting the existing power arrangements. If those are fulfilled (especially when full freedom of expression and information is granted), tacit consent can become a vital element of political legitimacy. (shrink)

Clinical research with adults who are unable to provide informed consent has the potential to improve understanding and care of a number of devastating conditions. This research also has the potential to exploit some of society's most vulnerable members. Recently, a number of task forces and individual writers have proposed guidelines to ensure that such research is both possible and ethical. Yet, there is widespread disagreement over which safeguards should be adopted. In the present paper, I consider to what (...) extent these disagreements can be resolved by appeal to a general account of the interests of subjects who are unable to consent and the conditions that must be satisfied for research enrollment to constitute exploitation of their inability to make their own decisions. (shrink)

Clinical research with adults who are unable to provide informed consent has the potential to improve understanding and care of a number of devasting conditions. This research also has the potential to exploit some of society's most vulnerable members. Recently, a number of task forces and individual writers have proposed guidelines to ensure that such research is both possible and ethical. Yet, there is widespread disagreement over which safeguards should be adopted. In the present paper, I consider to what (...) extent these disagreements can be resolved by appeal to a general account of the interests of subjects who are unable to consent and the conditions that must be satisfied for research enrollment to constitute exploitation of their inability to make their own decisions. (shrink)

It is universally accepted in bioethics that doctors and other medical professionals have an obligation to procure the informed consent of their patients. Informed consent is required because patients have the moral right to autonomy in furthering the pursuit of their most important goals. In the present work, it is argued that evidence from psychology shows that human beings are subject to a number of biases and limitations as reasoners, which can be expected to lower the quality of (...) their decisions and which therefore make it more difficult for them to pursue their most important goals by giving informed consent. It is further argued that patient autonomy is best promoted by constraining the informed consent procedure. By limiting the degree of freedom patients have to choose, the good that informed consent is supposed to protect can be promoted. (shrink)

However much one may wish for nonviolent solutions to the problems of unjust and unrestrained human violence that Glover explores in Humanity, some of those problems at present require violent responses. One cannot read his account of the Clinton administration’s campaign to sabotage efforts to stop the massacre in Rwanda in 1994 – a campaign motivated by fear that American involvement would cost American lives and therefore votes – without concluding that Glover himself believes that military intervention was morally required (...) in that case. Military intervention in another state that is intended to stop one group within that state from brutally persecuting or violating the human rights of members of another group is now known as “humanitarian intervention.” Those against whom the intervention is directed are almost always the government and its supporters, though this is not a necessary feature of humanitarian intervention. It is, however, a conceptual condition of humanitarian intervention that it does not occur at the request or with the consent of the government. The use of force within another state with the consent of the government counts as assistance rather than intervention. The principal reason that humanitarian intervention is contentious is that it seems to violate the target state’s sovereign right to control its own domestic affairs. Because humanitarian intervention is a response to human rights violations within the target state, it is regarded as altogether different from wars of defense against aggression. Indeed, since aggression is normally understood to be war against a state that.. (shrink)

Unconsented episiotomies and other procedures during labour are commonly reported by women in several countries, and often highlighted in birth activism. Yet, forced caesarean sections aside, the ethics of consent during labour has received little attention. Focusing on episiotomies, this paper addresses whether and how consent in labour should be obtained. We briefly review the rationale for informed consent, distinguishing its intrinsic and instrumental relevance for respecting autonomy. We also emphasise two non-explicit ways of giving (...) class='Hi'>consent: implied and opt-out consent. We then discuss challenges and opportunities for obtaining consent in labour and birth, given its unique position in medicine.We argue that consent for procedures in labour is always necessary, but this consent does not always have to be fully informed or explicit. We recommend an individualised approach where the antenatal period is used to exchange information and explore values and preferences with respect to the relevant procedures. Explicit consent should always be sought at the point of intervening, unless women antenatally insist otherwise. We caution against implied consent. However, if a woman does not give a conclusive response during labour and the stakes are high, care providers can move to clearly communicated opt-out consent. Our discussion is focused on episiotomies, but also provides a useful starting point for addressing the ethics of consent for other procedures during labour, as well as general time-critical medical procedures. (shrink)

The Human Tissue Act 2004 presents a radical change to the legal regulation of the use of human material in England and Wales. The Act presents a broad regulatory framework but much in the practical operation of the legislation will depend upon regulations to be enacted and a new Code of Practice. This article examines 'appropriate consent' for the use of human tissue for research purposes in the context of the living competent adult. It examines the provision of information (...) as part of the consent process for the use of human materials for research purposes, the question of when consent can be withdrawn, and the controversial exception enabling the use without consent of anonymized material for research purposes where the research has been ethically approved. The paper concludes by highlighting some of the problems which may remain after the legislation comes into force. (shrink)

Consent that is voluntary, informed and given by a competent person sometimes transforms a wrong into a right act. How does consent that meets these requirements change the moral property of an act, namely that of being a wronging of a person? This is the question this paper will deal with. Some authors argue that valid consent changes the moral property of an act by changing the reasons which speak against the act. This account of the normative (...) force of consent will be critically examined and rejected. An alternative model will then be put forward and defended according to which consent changes the moral property of an act if and only if the wrong‐making property of the act is that it is not consented to. The upshot will be that consent does not eliminate the wrong‐making property if the unconsented act is wrong for other reasons than not being consented to. (shrink)

Is it morally justifiable to force non-consenting pregnant women to submit to caesarean surgery to save their fetus in distress? Even though proponents and opponents largely agree on the interests at stake, such as the health and life of the fetus and the respect for bodily integrity and autonomy of pregnant women, they disagree on which moral weight to attach to these interests. This is why disagreements about the justifiability of forced caesareans tend to be pervasive and intractable. To (...) sidestep this deadlock, we will focus on conditions that give rise to the ‘caesarean dilemma’ in the first place, namely the conflict between inherent norms and values medical professionals are committed to by virtue of being a medical professional. Using the reflective equilibrium, we will test the opponents’ and proponents’ considered judgments about forced caesareans against the norms and values they—as medical professionals—are committed to and determine whether they are coherent. Subsequently we will identify the proponents’ incoherencies between the considered judgments and norms and values they are committed to and conclude that as long as these incoherencies are in place, forced caesareans are morally impermissible. (shrink)

Is it morally justifiable to force non-consenting pregnant women to submit to caesarean surgery to save their fetus in distress? Even though proponents and opponents largely agree on the interests at stake, such as the health and life of the fetus and the respect for bodily integrity and autonomy of pregnant women, they disagree on which moral weight to attach to these interests. This is why disagreements about the justifiability of forced caesareans tend to be pervasive and intractable. To (...) sidestep this deadlock, we will focus on conditions that give rise to the ‘caesarean dilemma’ in the first place, namely the conflict between inherent norms and values medical professionals are committed to by virtue of being a medical professional. Using the reflective equilibrium, we will test the opponents’ and proponents’ considered judgments about forced caesareans against the norms and values they—as medical professionals—are committed to and determine whether they are coherent. Subsequently we will identify the proponents’ incoherencies between the considered judgments and norms and values they are committed to and conclude that as long as these incoherencies are in place, forced caesareans are morally impermissible. (shrink)

In the UK in October 1992, Mrs S was forced to have a caesarean section despite her objections to such a procedure on religious grounds. The case once again called into question the obligations of women to the unborn, and also whether one person can be forced to undergo a medical procedure for the benefit of someone else. Re S, like the case of Angela Carder, is often discussed in terms of the conflict between maternal and fetal rights. (...) This paper looks instead at our obligations to save life in general-whether or not we are pregnant- and at the obligations of mothers to their children-whether they are born or unborn. Drawing on Judith Jarvis Thomson's distinction, it argues that minimal decency informs the duties which are owed to strangers, but that parents can be expected to behave as Good Samaritans towards their children. Finally, it is argued that even if mothers are ethically obliged to consent to caesarean sections which will save the lives of their babies, this does not necessarily mean that others are at liberty, or even obliged, to proceed with such operations without their consent. (shrink)

Despite a growing need for mental health services for adolescents, treatment access among adolescents remains poor. Psychologists practicing in the United States are subject to highly variable legal standards for consent and confidentiality of minor clients, which can further suppress treatment accessibility. States permit independent consent for minors according to a wide range of criteria, but whether these criteria are empirically derived remains unknown. Inconsistencies between the law and ethical obligations for psychologists can expose minor clients to harm (...) and force psychologists to make disclosures that violate patients’ rights and ethical standards. These harms may be particularly severe for clients from vulnerable populations such as sexuality and gender diverse youth (SGDY). To prevent ethical dilemmas, psychologists and professional organizations should work toward an empirical understanding of the adolescent capacity to consent to mental health care and use that understanding to promote uniform consent and confidentiality standards. (shrink)

Definition of the problem: In health care institutions caregivers from different cultures treat patients who themselves may come from different cultural backgrounds. The ethical impact of this issue is how in spite of these cultural differences mutual understanding can be achieved. Modern health care systems must react to this multicultural challenge explaining: what does universality of the medical task mean, what are the consequences of demographic change, how to deal with the multicultural work force of the modern health care facilities, (...) and how one must differentiate between universal and variable elements of the health care delivery. The following questions are discussed: 1. Which aspects of medicine require consideration of the multicultural structures? 2. Which medical fields must especially integrate multicultural perspectives? 3. How the patient's cultural context can be taken into account.Arguments: These levels of the problem are illustrated by the through the case of a German University hospital which presents a difficult decision making process.Conclusion: Three requirements result from this: 1. to work out the differences of behaviour, 2. to define the differences of value systems of both parts, the patient and the caregiver, and 3. to agree on mutual goals and values. (shrink)

As a normative concept, consent can perform the “moral magic” of transforming the moral relationship between two parties, rendering permissible otherwise impermissible actions. Yet, as a governance mechanism for achieving ethical data practices, consent has become strained—and AI has played no small part in its contentious state. In this chapter we will describe how consent has become such a controversial component of data protection as artificial intelligence systems have proliferated in our everyday lives, highlighting five distinct issues. (...) We will then lay out what we call consent’s “moral core,” which emphasizes five elements for meaningful consent. We next apply the moral core to AI systems, finding meaningful consent viable within a particular digital landscape. Finally, we discuss the forces driving some commentators away from individual consent and whether meaningful consent has a future in a smart world. (shrink)

Carte Blanche is the alarming tale of how the right of Americans to say "no" to risky medical research is eroding at a time when we are racing to produce a vaccine and treatments for Covid-19. This medical right that we have long taken for granted was first sacrificed on the altar of military expediency in 1990 when the Department of Defense asked for and received from the FDA a waiver that permitted it to force an experimental anthrax vaccine on (...) the ranks of ground troops headed for the Persian Gulf. Since then, the military has pressed ahead to impose nonconsensual testing of the blood substitute PolyHeme in civilian urbanities, quietly enrolling more than 20,000 non-consenting subjects since 2005. Most Americans think that their right to give or withhold consent is protected by law, but the passing in 1996 of modifications to the Code of Federal Regulations, such as statute CFR 21 50.24, now permit investigators to conduct research with trauma victims without their consent or event their knowledge. More than a dozen studies since have used the 1996 loophole to recruit large numbers of subjects without their knowledge. The erosion of consent is the result of a U.S. medical-research system that has proven again and again that it cannot be trusted. (shrink)

In this paper, I will explain and motivate the common consent argument for theism. According to the common consent argument it is rational for you to believe that God exists because you know so many other people believe that God exists. Having motivated the argument, I will explain and motivate several pressing objections to the argument and evaluate their probative force. The paper will serve as both an accessible introduction to this argument as well as a resource for (...) continued research on the topic. (shrink)

Politics, Philosophy & Economics, Volume 21, Issue 4, Page 393-414, November 2022. Sometimes, people consent to sex because they face social constraints. For example, someone may agree to sex because they believe that it would be rude to refuse. I defend a consent-centric analysis of these encounters. This analysis connects constraints from social contexts with constraints imposed by persons e.g. coercion. It results in my endorsing what I call the “Constraint Principle.” According to this principle, someone's consent (...) to a sexual encounter lacks justificatory force if they are consenting because withholding consent has an adverse feature, they are entitled to withhold consent without it being the case that withholding consent has this adverse feature; and it is not the case that the consent-giver has sincerely expressed that, out of the options that are available to their sexual partner, they most prefer to go through with the sexual encounter in the circumstances. (shrink)

The article analyses the role and moral force of consent in BDSM (Sado-masochistic and related practice). The view defended accepts consent as a key feature in sexual morality, and explains in detail the relation between consent and autonomy. In brief, it is argued that consent as a genuine extension of personal autonomy both justifies and draws limits to justifiable BDSM-practices: autonomy-undermining practices cannot be justified by appealing to autonomy. The paper discusses in detail the necessary conditions (...) for consent with an emphasis on relevant pitfalls in the context of BDSM and moves to an analysis of the prevalent “official” morality of the BDSM-community, expressed in the slogan “safe, sane, and consensual.” Finally, it draws attention to an un-discussed parallel between sexual morality and the concept of exit-rights as it is known from political philosophy. (shrink)

Although Hannah Arendt is not known as an advocate of nonviolence per se, her analysis of power dynamics within and between groups closely parallels Gandhi’s. The paper shows the extent to which her insights are compatible with Gandhi’s and also defends her against charges that her description of the world is overly normative and unrealistic. Both Arendt and Gandhi insist that nonviolence is the paradigm of power in situations where people freely consent to and engage in concerted action, and (...) both argue that power structures based on violence and coercion will ultimately fail, because the resort to violence implies an inability to gain free consent or cooperation. Any gains from violence are temporary, since agents will express themselves freely as soon as force is withdrawn. Arendt argues that dominating powers know this, and therefore rely on manipulation, propaganda, and outright lies to win people’s consent, an analysis which can be used to explain some current social dynamics. (shrink)

Recent state regulations require women, before undergoing abortions, to be subjected to unwanted and nonmedically necessary sonograms, often requiring an intrusive vaginal probe. Physicians, for their part, are forced to turn the viewing screens toward the faces of their patients and to describe to them the details on the screen. In this commentary, I explain these current laws and the various court responses to them to date. Further, I demonstrate why these abortion regulations violate the ethical principles governing informed (...) consent and why they should be declared unconstitutional based on women’s constitutional rights as settled by Planned Parenthood of Southeastern Pennsylvania v. Casey and physicians’ First Amendment rights. (shrink)

Classic statements of research ethics advise against permitting physician-investigators to obtain consent for research participation from patients with whom they have preexisting treatment relationships. Reluctance about “dual-role” consent reflects the view that distinct normative commitments govern physician–patient and investigator–participant relationships, and that blurring the research–care boundary could lead to ethical transgressions. However, several features of contemporary research demand reconsideration of the ethics of dual-role consent. Here, we examine three arguments advanced against dual-role consent: that it creates (...) role conflict for the physician-investigator; that it can compromise the voluntariness of the patient-participant’s consent; and that it promotes therapeutic misconceptions. Although these concerns have merit in some circumstances, they are not dispositive in all cases. Rather, their force—and the ethical acceptability of dual-role consent—varies with features of the particular study. As research participation more closely approximates usual care, it becomes increasingly acceptable, or even preferable, for physicians to seek consent for research from their own patients. It is time for a more nuanced approach to dual-role consent. (shrink)

In this paper, I will examine a puzzling discrepancy between the way clinicians are allowed to treat their patients and the way researchers are allowed to treat their subjects: in certain cases, researchers are legally required to disclose quite a bit more information when obtaining consent from prospective subjects than clinicians are when obtaining consent from prospective patients. I will argue that the proper resolution of this puzzling discrepancy must appeal to a pragmatic criterion of disclosure for informed (...) consent: that what needs to be disclosed in order for consent to be valid depends on what the patient/subject needs to know in order to make a decision. I will then use this pragmatic criterion of disclosure to argue that when obtaining consent researchers should be permitted to omit the same information clinicians are, given certain qualifications. I will also examine how this puzzle forces us to confront some perhaps surprising truths about valid consent. My broader aim in this paper is to examine, not so much the puzzle itself, but rather what this particular puzzle can teach us about more theoretical issues surrounding informed consent. (shrink)

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but the body – the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can (...) be justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms. (shrink)

This paper is an analysis of the events recounted in 'Informed consent to septoplasty: An anecdote from the field.' As a commentary, it assesses the behavior of many agents who are parties to the story - physicians, nurses, friends of the patient, the patient's wife and the patient himself. This story is interesting for being mundane. The medical condition involved and the failures of care are not momentous. The patient's role as a medical ethicist led him to see things (...) in particular perspective and motivated or influenced his conduct sometimes not in the smartest of ways. Several accounts of informed consent are reviewed and used as measures of what happened. The moral vision behind informed consent, the rights and duties it implies and the elements of its contents are identified. No account was fulfilled. Some of the reasons and causes for this are discussed. Many sources of information and forces acting on the situation are explored. Post-operative experiences include severe irritation and discomfort as well as severe frustration and a sense of alienation and abandonment. The case communicates a hint about what physicians do not know in order to have informed consent occur. Physicians' lack of awareness about, e.g., post-operative experience means that they will not provide what the informed aspect of informed consent requires. Patients can feel abandoned and perhaps are abandoned in a variety of ways, subtle and not so subtle. A few issues besides informed consent are discussed (the roles of wives in working at their physician-husband's front desk, the language of reassurance). (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)

Although being generally safe, the use of Deep Brain Stimulation has been associated with a significant number of patients experiencing postoperative psychological and neurological harm within experimental trials. A proportion of these postoperative severe adverse effects have lead to the decision to medically prescribe device deactivation or removal. However, there is little debate in the literature as to what is in the patient’s best interest when device removal has been prescribed; in particular, what should be the conceptual approach to ethically (...) guide the decision to remove or maintain implants. The purpose of this article is to examine the ethical issues raised when patients refuse brain device explantation despite medical prescription. In order to illustrate these issues, we report and discuss a clinical case involving a patient suffering from treatment resistant depression who experienced forms of postoperative self-estrangement, as well as suicidal attempts, but who resists giving consent to device explantation. (shrink)

Should people be involved as active participants in longitudinal medical research, as opposed to remaining passive providers of data and material? We argue in this article that misconceptions of ‘autonomy’ as a kind of feat rather than a right are to blame for much of the confusion surrounding the debate of dynamic versus broad consent. Keeping in mind two foundational facts of human life, freedom and dignity, we elaborate three moral principles – those of autonomy, integrity and authority – (...) to better see what is at stake. Respect for autonomy is to recognize the other's right to decide in matters that are important to them. Respect for integrity is to meet, in one's relationship with the other, their need to navigate the intersection between private and social life. Respect for authority is to empower the other – to help them to cultivate their responsibility as citizens. On our account, to force information onto someone who does not want it is not to respect that person's autonomy, but to violate integrity in the name of empowerment. Empowerment, not respect for autonomy, is the aim that sets patient-centred initiatives employing a dynamic consent model apart from other consent models. Whether this is ultimately morally justified depends on whether empowerment ought to be a goal of medical research, which is questionable. (shrink)

John Rogers explores the concepts of recognition, command and authority and tests their validity in several cases presented by Hobbes, ranging from parental authority to the omnipotence of God. The general thesis he defends is that, for Hobbes, autonomy always goes hand in hand with the possession of power. Even for the individuals in a civil society, there is no autonomy but in a condition of empowerment. But, at the same time, the strength of the laws of nature rests in (...) their rationality, and there can be no doubt that their compelling force comes from their being rational. The comparison with mathematical theorems furnishes an important element of understanding, since the laws of nature are conclusions concerning that which conduces to the conservation of oneself. Although there is an empirical element in the deduction of those practical theorems, this is no objection to the analogy being drawn, since this empirical element belongs to the learning process and not to the rationality of the law itself. In the light of this conception of natural law, Hobbes thus appears as a rationalist in morals and politics. (shrink)

The Mental Capacity Act 2005 came into force in England and Wales in 2007. Its primary purpose is to provide “a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves.” Examples of such people are those with dementia, learning disabilities, mental health problems, and so on. The Act also gives those who currently have capacity a legal framework within which they can make arrangements for a time when they may come to lack (...) it. Toward this end, it allows for them to make advance decisions or to appoint proxy decision makers with lasting powers of attorney. (shrink)

It is often claimed that the autonomy of heroin addicts is compromised when they are choosing between taking their drug of addiction and abstaining. This is the basis of claims that they are incompetent to give consent to be prescribed heroin. We reject these claims on a number of empirical and theoretical grounds. First we argue that addicts are likely to be sober, and thus capable of rational thought, when approaching researchers to participate in research. We reject behavioural evidence (...) purported to establish that addicts lack autonomy. We present an argument that extrinsic forces must be irresistible in order to make a choice non-autonomous. We argue that heroin does not present such an irresistible force. We make a case that drug-oriented desires are strong regular appetitive desires, which do not compromise consent. Finally we argue that an addict’s apparent desire to engage in a harmful act cannot be construed as evidence of irrational or compulsive thought. On these arguments, a sober heroin addict must be considered competent, autonomous and capable of giving consent. More generally, any argument against legalisation of drugs or supporting infringement of the liberty of those desiring to take drugs of addiction must be based on considerations of harm and paternalism, and not on false claims that addicts lack freedom of the will. (shrink)

Some care home residents with dementia have the capacity, some do not. Staff may need to make decisions about administering care interventions to someone whom they believe lacks the capacity to consent to it, but also resists the intervention. Such intervention can be termed forced care. The literature on forced care (especially reflecting empirical work) is scant. This study aims to investigate how the ethics of forced care is navigated in practice, through ten semi-structured interviews with (...) staff in 1 care home in the North East of England. Participants generally avoided situations where there was overt restraint, taking a flexible approach by either modifying their own behaviour or using covert techniques. The underlying justification given for decisions or actions tended to be that the recipients of care should be valued because of their intrinsic worth as fellow human beings. Participants attempted to put themselves in the position of the resident or think about what a beloved elderly relative would want. The intervention seemed acceptable to staff if the resident was not distressed. When staff were presented with scenario-based questions around capacity they were more successful than when asked direct questions relating to the Mental Capacity Act. Scenario-based training may be helpful to reinforce familiarity and facility with the principles of the Mental Capacity Act. (shrink)

It has come to our attention that in the original article [1] information regarding dates was omitted. The data in this study were obtained in Switzerland four years before the entering into force of the new Swiss Human Research Act in 2014, when the guidelines of the Swiss Academy of Medical Sciences ceased to apply. It is important for readers to know that at the time of the study there was no binding law in Switzerland, only the more open SAMS (...) guidelines that have a different legal status. We would expect to find less variation of opinions among research ethics committee members if the study were repeated after the federal law came into force. (shrink)

The issue of acquaintance rape has been gaining increased prominence in recent years. In this book Joan McGregor analyses the ethical and legal problems that arise in connection with acquaintance rape cases. She discusses with great clarity and precision the complexities involved in notions such as consent, force, autonomy, power, intention and the impairment of responsibility through drugs, alcohol and mental illness. Arguing that criminal rape laws are too narrow, capturing only cases where there is clearly recognized physical violence (...) and resistance from the victim, she sets out a new proposal for how the criminal law should deal with cases of nonconsensual sex which captures the ideals of a liberal political society and in particular the idea of equality. This book explains fully what it means when a woman says no and means no. (shrink)

On many science-related policy questions, the public is unable to make informed decisions, because of its inability to make use of knowledge obtained by scientists. Philip Kitcher and James Fishkin have both suggested therefore that on certain science-related issues, public policy should not be decided on by actual democratic vote, but should instead conform to the public’s counterfactual informed democratic decision. Indeed, this suggestion underlies Kitcher’s specification of an ideal of a well-ordered science. This article argues that this suggestion misconstrues (...) the normative significance of CIDDs. At most, CIDDs might have epistemic significance, but no authority or legitimizing force. (shrink)

Health research for progress in the control and conquest of disease afflicting man is unquestionable. Concerns arise when motives other than the advancement of scientific knowledge and benefit for individuals and society are the driving force behind clinical trials. These conflicts of interests become even more pronounced when dealing with populations rendered vulnerable by virtue of poverty and ignorance. South Asia with its teeming millions represents one such region. This essay examines the reasons that make this population vulnerable to exploitation. (...) Informed consent in the process of research is an area where such conflicts are prone to arise. In order to ensure that conflicting interests of researchers and funding agencies are kept in check, the processes of informed consent and ethical review of research need to be strengthened. Suggestions are put forward to modify the consent process to match the needs of South Asia and to strengthen the ethical review process for safeguarding the rights of the study subjects. But perhaps the most important safeguard against exploitation is the virtuous researcher himself with noble intentions. (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)

This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission . When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong (...) against the consenting person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons. (shrink)