The Conditions of Valid Consent

1. The Conditions of Valid Consent • Even if one consents to something, the consent is null and void unless certain conditions are satisfied. • Brock points out three conditions (110: Q3): • Voluntariness Condition: the consent does not result from coercion or manipulation. • Competency Condition: the person giving consent competently gives the consent. • Informed Understanding Condition: the person giving consent has understood relevant facts. • However, there is at least one more condition. • Non-retraction Condition: the person who consented has not retracted the consent legitimately. • Some issues about advance directive concern this condition. • Some people argue there is a further condition. • Moral Acceptability Condition: the content of the consent is morally acceptable.

2. 5.Moral Acceptability Condition? • This condition of valid consent says that the content of the consent is morally acceptable. It looks simple and uncontroversial, but that is mere appearance. • Part of the role of consent is to change previously wrong things into permissible things. • Ex.1: It is wrong for you to punch me (without consent). However, if I and you consent to having a boxing match, then it becomes permissible for you to punch me during the match. • Ex.2: Even if you are a doctor, it is wrong for you to cut me with knife (without consent). However, if I consent to your operating on me with knife, it becomes permissible for you to do so. • Thus, the condition “the content of the consent is morally acceptable” implies (1) that one’s consent to certain things – e.g., killing him, enslaving him – cannot make them permissible, and (2) that the content of the consent in question is not any of those things. (1) is controversial: is this consistent with respect for one’s autonomy, and if not, how can one justify that?

3. Voluntariness Condition(Brock, 117-10) • A valid consent must be voluntarily given. • Why is an involuntary given consent invalid? An involuntarily given consent fails to reflect the preferences of the consenter, so accepting it will not respect the consenter’s self-determination (i.e., autonomy). (Brock, 117) • There are two ways in which a person’s consent can be involuntary: (1) the consent results from coercion; (2) the consent results from manipulation.

4. Coercion • A consent comes from coercion if the consentor makes the consent due to violence or threat by other persons. • Ex.: “a gravely ill patient is told that unless he agrees to further treatment, other palliative measures to limit his discomfort will be withdrawn.” If the patient consents to the further treatment due to this remark, the consent is invalid. (Brock, 117) • Threat (as in the above example) must be distinguished from mere warning. To make a threat, one needs to directly or indirectly express the intention to do or allow the unwanted consequences. If a doctor merely informs the patient that the unwanted consequences will come from the patient’s alternatives, it is only a warning and not a threat. (Brock, 118)

5. Lousy Situations Are Not Coercions (in the Relevant Sense) (Brock, 118) • There are situations where one must consent among unpleasant and unwanted choices between bad alternatives. • Ex.: the situation where painful chemotherapy is the only treatment for an otherwise fatal cancer. • Some people say that the consent in such a situation is “coerced”. • However, unpleasant and unwanted choices between bad alternatives are not themselves coercive in the relevant sense: they are neither the uses of violence nor treats by other persons. • The consent among such choices still reflect the preferences of the consenter, so accepting it as valid will respect the consenter’s self-determination.

6. Manipulation (Brock, 118-10) • A consent is invalid if it arises from manipulation. • It is hard to define manipulation, but here is one attempt: intentionally making or prompting people to make a certain choice in the ways rational people would not want to make their decisions.

7. Manipulation: Examples • subliminal advertising • posthypnotic suggestions made to non-consenting subjects • brainwashing • getting someone drunk or drugged before a decision • bribes appealing to a person’s weaknesses • pressing a person for consent when the person is distracted • imposing on the person’s good nature (e.g., using the pressure from kids, families etc.) • playing on a person’s neurotic guilt feeling • coloring certain options black (or bright) by insinuation

8. Possible Manipulation in Medicine • Rewards, offers and encouragements can work as forms of manipulation. • Ex.: Medical professionals deal with abnormally weak, dependent and surrender-prone patients, e.g., bedridden patients. Suppose with rewards, offers or encouragement, the professionals contribute to or play on such patients’ desperation, anxiety, boredom, or other emotions or pandering to their hope of more attention and better care. The professionals eventually get the consent to the medical treatment they recommend from these patients. • Is this consent valid? • You might find this case unproblematic. However, remember thata main point for giving patients the authority to consent about their medical treatments is thatthe chosen medical optionwill probably be the best for them.Attaching rewards, offers and encouragements to some but not all options might well undermine this point.

9. 2. Competency Condition (110-7) • If the person giving consent does not competently give the consent, the consent is not fully effectual. • Why? If the person does not competently give the consent and thus the decision making is seriously defective, the likelihood increases that accepting the consent will have grave consequences. • The types of potential grave consequences vary with what one consents to. In medicine, if the patient’s incompetently given consent is accepted, the patient’s well-being will be in danger.

10. Three Elements of Competency(Brock, 112: Q4) • The ability to understand and exchange relevant info • The ability to decide through reasoning and deliberation about the pros and cons of choices (e.g., of alternative treatments) • The possession of standards and goals by which to evaluate these choices • Why do these abilities matter? • If 3. is missing, the consent does not result from his or her self-determination – the determination based on his or her own goals and standards –, so we do not have much reason to respect that consent. • If 1. or 2. is missing, then the consenter might make consent that will lead to grave consequences.

11. May we judge competence by the content of the consent? (114) • If a person consents to an apparently crazy thing, e.g., to apparently very bad for him or her, may we judge him or her to be incompetent for this very reason? • Brock reject this in medicine on two grounds. • If doctors do this, it risks abuse and unwarranted denial of patients’ self-determination on the pretense “for their own good (well-being)”. • The objective theories of well-being is mistaken, and some sort of preference theories is correct. So, we cannot criticize a person’s decision about his or her well-being using external or objective standards. • As the second ground suggests, this issue partly depends on which theory of well-being is correct.

12. 3. Informed Understanding Condition (120) • If consent is not based on the informed understanding of available relevant information, the consent is invalid. • Relevant info is information on the situation where the consenter is, the contents of available alternatives, the purposes of each alternative, and its reasonably expected important effects. • Which consequences are important? It partly depends on the contents of choices, the purpose of the consent, and what the consenter wants to know. (Q: How about consent on sex?) • But important consequences will at least include morally significant consequences, including considerable effects on the consenter and his or her acquaintances.

13. Why Does Informed Understanding Matter? • There are two main reasons. • Without informed understanding, the consenter cannot effectively practice self-determination by making consent: actions based on the consent will tend not to meet his or her goals and standards. • Without informed understanding, the consenter can make consent the acceptance of which leads to grave consequences.

14. The Duty to Disclose Information • About the types of consents that every person (with competence) has the authority to give on his or her matter, people who have the information necessary for his or her informed consent are morally obliged to provide the information. • The point of this requirement is to enable people to make decisions effectively as well as to protect them from the harms from their uninformed consent. • Thus, medical professionals are required to provide patients with the info on the alternatives of their treatments; lawyers are required to provide clients with the info on their legal alternatives; potential lovers are required to provide each other with the info on the expected results of having relations; and so on.

15. Are These Medical Violation of the Duty of Disclosure Justifiable? • Therapeutic Use of Placebos (without informing the patients that they are placebos) • Withholding some information from research subjects (e.g., examining urine for uninformed purposes, say, to check cocaine uses, so that policy makers and doctors know accurate information about illicit drug use for health care and public policy)

16. Is a Patient Required to Give a Consent? • Many people, including Brock, hold that the patient has the authority, not the obligation, to give a consent on their medical treatment. • That is, the patient may entrust others (medical professionals or the patient’s families or friends) with decision on his or her medical treatment. (Brock, 107-9) • There are two main reasons for this: • (1) by choosing to entrust others, the patient minimally exercises his or her self-determination; • (2) the patient might have a good reason to think that people other than him or her can make a better decision. (Medical professionals know more about each treatment option. The patient’s thinking about what treatment to receive might be detrimental to his health, and the patient might be diffident about whether he or she can make a correct decision.)

17. Caution (Brock, 107-9) • However, in order for the (competent) patient’schoice of entrusting others to be valid, the choice must be voluntary and informed. • Medical professions, families and families must not force the patient to entrust them. • Medical professions must first inform the patient that he or she has the authority to choose a medical treatment on his or her own. • The reason is to let the (competent) patient determine on their own at least to a minimal extent, and to protect the patient’s well-being.

18. When is it justified to avoid the process of acquiring a valid consent? (124: Q5) • Many argue that there are four situations: • (Legitimate) “therapeutic privilege” is operative. (There is strong evidence that the disclosure of relevant information by itself would cause serious harm to the patient.) • The person is incompetent and will not be competent. • The person has voluntarily and competently chosen to defer to others (their families or professionals)after being informed that the patient has the authority to give a consent. • Emergencies, where failure to make urgent care would likely result in grave consequences, and obtaining the person’s consent is either not possible or would delay the rendering of that care.

19. The Limitation by Overall Consequences? • Some argue that even where matters seem to be primarily issues of one’s well-being or self-determination, his or her authority to give consent may be restricted if there are great effects on others. See following possible examples in medicine. • Inoculations [vaccinations] for public health purposes • Treatment in connection with obtaining evidence in criminal proceedings • At least 14 European countries use “presumed consent” on the issue of organ transplant. A dead person is assumed to be a potential ‘donor’ of solid organs unless he or she has specified otherwise. Several states in the US have done likewise for corneas. (As you see, ‘presumed consent’ is not real consent as cold war or economic war is not real war, as diet coke is not real coke, or a drag queen is not a real queen. )