The varieties of consent.
Article Type: Book review
Subject: Books (Book reviews)
Author: Dresser, Rebecca
Pub Date: 09/01/2011
Publication: Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 2011 Hastings Center ISSN: 0093-0334
Issue: Date: Sept-Oct, 2011 Source Volume: 41 Source Issue: 5
Topic: NamedWork: The Ethics of Consent: Theory and Practice (Nonfiction work)
Persons: Reviewee: Miller, Franklin G.; Wertheimer, Alan
Accession Number: 268403555
Full Text: The Ethics of Consent: Theory and Practice. Edited by Franklin G. Miller and Alan Wertheimer. Oxford University Press, 2009. 432 pages. Hardcover. $39.99.

Do we really need another book on informed consent? Frank Miller and Alan Wertheimer, who edited The Ethics of Consent, have two good answers to this question. First, they write, "despite a considerable literature on consent in different contexts, there is surprisingly little systematic analysis of the concept of consent and the moral and legal work that it performs" (p. x). Second, they point out (correctly, I believe) that "bioethicists sometimes write as if the concept and principle of (informed) consent was first developed for their purposes and [as if] there was no need to reflect on the way in which consent operates in other contexts in order to provide an adequate account of consent in medicine and clinical research" (pp. x-xi).

Miller and Wertheimer set out to rectify this situation by commissioning authors with a range of expertise to write about consent theories and applications in a variety of contexts. The Ethics of Consent has chapters on the history of consent, political obligation and consent, and consent in sexual relations, criminal law, and contract law. It also has chapters on several medical ethics topics, such as consent in medicine, consent in biomedical research, and consent to organ donation. Chapter authors include professors of philosophy, law, political science, and medicine.

The Ethics of Consent has several potential audiences. Its fifteen chapters cover much ground and a diversity of topics. The volume could be useful to people working in philosophy, law, and political science, as well as in medicine and bioethics. I read the book as someone in the bioethics field, so I will review it from that perspective.

Many chapters in The Ethics of Consent are quite relevant to bioethics. For example, in "Autonomy and Consent," Tom Beauchamp analyzes informed and voluntary consent in medicine and research. He notes that social rules determine which sorts of consent "count" in various settings, and that sometimes those rules fail to require the autonomous authorization that constitutes a morally valid choice. Although this can be defensible in certain situations, he believes that consent rules should conform as much as possible to a standard that truly protects the individual's autonomy. At the same time, Beauchamp thinks that some philosophers define autonomous action in ways that are too demanding. He criticizes "split-level" theories that define autonomous persons as those capable of acting according to their higher-order preferences, as opposed to the lower-level desires that drive most ordinary conduct. "Requiring reflective identification and stable volitional patterns unduly narrows the scope of actions protected by a principle of respect for autonomy" (p. 65), Beauchamp contends. He points out that such an approach classifies many ordinary life activities as nonautonomous and thus unworthy of the respect we give to autonomous actions. Beauchamp proposes instead that an autonomous authorization exists when a competent individual intentionally agrees to something with adequate understanding while free of the internal and external pressures that "rob the person of self-directedness" (p. 69). He explains how each of these conditions may be satisfied and applies his account to specific bioethics problems, such as the therapeutic misconception and the exploitation of subjects in biomedical research.

In a jointly written chapter, Miller and Wertheimer offer an analysis that expands the conventional view that valid consent is the element that makes an action morally permissible. In their view, valid consent transactions must be "morally transformative" (p. 79). To meet this standard, consent transactions must incorporate more than a valid individual consent. The background conditions for a transaction determine whether the consent is morally transformative. Although the chapter examines consent in many different settings, Miller and Wertheimer specifically address consent to medical treatment and research participation. In the research context, they suggest, a fair consent transaction will include "affirmative steps to counteract therapeutic misconceptions," such as discussion of the differences between research participation and clinical care and evaluation of whether prospective subjects understand "key features of the research" (pp. 102-3).

Steve Joffe and Bob Truog extend this "fair transaction" concept of consent in their chapter, "Consent to Medical Care: The Importance of Fiduciary Context." It is the physician's fiduciary obligation, they write, that constitutes the background condition for a morally transformative consent to medical intervention. Through exploring the fiduciary nature of the doctor-patient relationship, Joffe and Truog develop an approach to discerning which medical decisions require individual patient consent and which decisions physicians may defensibly make without consulting their patients.

Three other chapters address consent questions of particular interest to bioethics readers. Douglas Husak examines whether an individual's prior consent can justify treating that individual paternalistically. He considers the precommitment agreements philosophers and others have proposed for managing self-destructive behavior like gambling and exorbitant spending. Husak's position is that the presence of prior consent is morally irrelevant to the question of whether paternalistic treatment is justified. He argues that the criteria for an acceptable paternalistic intervention are the same whether or not the individual agreed to that intervention at a previous time.

Arthur Kuflik's chapter on hypothetical consent looks closely at two areas in which this concept is used to justify medical decisions. One is treatment decision-making for incapacitated patients, where the substituted judgment standard is often invoked to support a choice to administer or forgo a particular intervention. The second is what is sometimes called the "thank you theory of medical ethics," in which a health intervention is imposed on the ground that an individual will later appreciate and "retrospectively consent" to that intervention. Kuflik's chapter is in part a response to Judith Jarvis Thompson's claims that hypothetical consent is irrelevant to the morality of these kinds of medical decisions. Kuflik thinks that hypothetical consent does have a role in resolving certain medical ethics problems, though he concedes it is a limited role. (As he points out, similar limits apply to actual consent as a criterion for moral permissibility.) Kuflik describes several well-known court cases to illustrate correct and mistaken applications of hypothetical consent to determine treatment choices for incapacitated patients. He also discusses the strengths and weaknesses of advance directives as the basis for hypothetical consent, noting the epistemic and ethical issues that can arise when directives are invoked to support a treatment decision. Finally, he rejects the use of hypothetical consent to resolve treatment questions for children, concluding that in this situation a parent's duty instead is to choose what will preserve her child's "eventual right to decide for himself what is good and what is not" (p. 152).

In another chapter, Vera Bergelson reviews situations in which the law accepts (or rejects) an individual's consent to physical harm as a justification or excuse for behavior that would ordinarily be deemed criminal. She considers cases of mercy-killing and disfiguring surgery in her analysis and concludes that although "consent alone does not suffice to justify the victim's death or injury; ... consent should always at least be a partial defense, because it defeats at least one aspect of harm, namely, violation of rights" (p. 181).

Other chapters also address consent in the bioethics context. John Kleinig's "The Nature of Consent" uses treatment and research examples to illustrate many of his points. Philip Candilis and Charles Lidz contribute a concise yet wide-ranging review of empirical work on informed consent in medicine and research. A chapter by Frank Miller explains what is ethically troubling about the therapeutic misconception and how it can invalidate informed consent to research participation. This chapter also analyzes the ethics of research in the absence of consent, citing medical records research as a case in which consent may not be necessary. Janet Radcliffe Richards offers a well-reasoned analysis of claims that payment invalidates a living individual's otherwise sufficient consent to kidney donation.

Much of the analysis in The Ethics of Consent helps explain existing rules and practices governing consent in medicine and research. Readers will come away with a richer understanding of why things are the way they are. Most of the authors are in the mainstream; their analyses allow us to see the normative foundation of our consent conventions. Some authors, like Miller and Wertheimer, go a bit further, offering a different slant on the way people in bioethics should think about consent. In questioning the standard arguments for a ban on organ sales, Radcliffe Richards is the sole author presenting a serious challenge to the status quo.

Although many chapters in The Ethics of Consent directly engage bioethics topics, I had a hard time seeing how some chapters in the volume illuminate consent in the bioethics context. Since one of the editors' major goals was to enhance bioethicists' understanding of consent, it would have been helpful if each chapter had considered the relevance of its analysis to consent in the medical and research arenas. Alternatively, the editors could have discussed bioethics implications in a concluding chapter. As it stands, many clinicians and bioethicists will find some of the book's material rough going and will wonder what that material has to do with their area of interest.

Although the book has its shortcomings, it adds important insights to the existing literature on consent. Readers will come away with an enriched sense of how consent works in a variety of human situations and with a new appreciation of the strengths and weaknesses of the standard consent models in medicine and research. The book also does a good job of putting consent in perspective by highlighting consent's limited moral and legal force in various contexts. Given these virtues, bioethicists would be well advised to make room on their bookshelves for The Ethics of Consent.
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