Abstract
Informed consent is normally understood as something that a patient gives prior to a medical intervention that can render it morally permissible. Whether or not it must be given prior to the intervention is debated. Some have argued that subsequent consent—that is, consent given after a medical intervention—can also render an otherwise impermissible act permissible. If so, then a patient may give her consent to an intervention that has already been performed and thereby justify a physician’s (paternalistic) act retroactively. The purpose of this paper is to argue that even if subsequent consent can render an otherwise impermissible act permissible, doctors are still blameworthy if they rely on it when prior consent could be given, because they would be banking on the justification of their interventions. Since doctors can only guess if patients will consent after the fact, they would be placing their patients at unreasonable risk of being disrespected as persons.
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Notes
For a good article on eight accounts of the normative force of consent, see Heidi Hurd (2018).
There has been a related discussion in the psychiatric literature. Alan Stone (1975), for instance, has proposed his “Thank You Theory” of the justification for involuntary commitment. For a more recent discussion, see Mark Cherry (2010) and Anne-Laure Donskoy (2015). Relatedly, for a good resource on attaining deferred consent to conduct research on critically ill and incapacitated patients, see Duvall and Burns (2017).
Of course there is debate over how much information a doctor must disclose in order for a patient to give informed consent. One of the main approaches is the reasonable person standard, which would suggest that the painfulness of an intervention is pertinent. For more on the reasonable person standard, see Beauchamp and Childress (2012), p. 126.
Carter acknowledges that there are moral limits to what Jim could do to prevent the purchase.
John Kleinig (1983) has made a similar objection (pp. 62–63).
Joel Feinberg echoes this position. He considers the case of a rape victim eventually falling in love with her rapist and subsequently consents to the sex act. Her “forgiveness cannot change history, or magically recreate the past” (Feinberg 1986, p. 182).
Alan Wertheimer (1993) is one who construes retroactive consent as gratitude.
Granted, it may be plausible to say that in this situation person A has an all-things-considered desire to go to person B’s restaurant, but this does not sufficiently capture the possible nuances of the situation. We can imagine a preference ranking for person A with three options: (1) insisting on going to person A’s favorite restaurant and winning; (2) conceding and going to person B’s favorite restaurant; and (3), insisting but losing (and thus eating alone). Now person A might have an all-things-considered preference for (2), given the gamble between (1) and (3). But that does not mean that person A has an all-things-considered preference for (2), which is what the “all-things-considered” thesis seems to require: that whenever person A consents to go to person B’s favorite restaurant, person A all-things-considered prefers person B’s favorite restaurant over her own. Rather, it is that person A prefers the sure thing of person B’s restaurant to the gamble between person A’s favorite and eating alone (Chwang 2009, p. 120).
For a very similar view of not minding, see Larry Alexander (2014).
For more on subsequent consent, see Davis (2004).
By bringing up the distinction between rules and acts, I am not attempting to make any arguments regarding the debate between rule and act utilitarianism. For a good review, see Nathanson (n.d.).
This, of course, assumes that a person could not retract her consent retroactively and thereby render a permissible act impermissible.
Admittedly, there can be disagreement over what level of intoxication would be necessary in order to place others at unreasonable risk, but that is consistent with my main claim, which is that the person is blameworthy even if no one gets hurt.
The fact that I began this section with a defense of following procedure and ended it with a discussion about virtue may suggest that I propose that what makes a virtue a virtue is whatever disposition that leads to the greatest outcomes. This is not my position; I am not proposing virtue consequentialism (Driver 2001). Rather, what I attempted to do is explain why placing others at unreasonable risk is irresponsible. I do not address what makes being irresponsible a vice, nor do I address the nature of being responsible other than not placing others at unreasonable risk.
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Chen, J. Subsequent Consent and Blameworthiness. HEC Forum 32, 239–251 (2020). https://doi.org/10.1007/s10730-020-09404-w
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DOI: https://doi.org/10.1007/s10730-020-09404-w