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The article Informed Consent (Stanford Encyclopedia of Philosophy) lists some main arguments for informed consent. They are: "protection", "autonomy", "prevention of abusive conduct", "trust", "self-ownership", "non-domination", and "personal integrity". The article goes on to present counterarguments for it, and it seems to me that the justifications for informed consent are largely challenged, if not foundered. (A summary of this article is available in my website).

Anyway, the article seems to conclude that informed consent is not a natural right, but just a legal right. Here is the explanation:

One reason to take non-naturalistic approaches to the status of informed consent seriously is that not all natural rights are legally enforceable. Therefore, a moral informed consent right that is legally enforceable (as that right is usually taken to be in at least some institutional settings) may stand in need of additional moral justification, even if a natural right has been established. That additional, inescapable moral justification may then turn out to justify informed consent regulations even absent natural informed consent rights, say as trust-building measures. In particular, recall that many bioethicists ground informed consent in duties to treat rational, autonomous persons respectfully. Some such duties are clearly non-enforceable. For example, the moral duty not to lie to persons in breach of their autonomous decision-making is seldom legitimately enforceable. It is not the business of third parties to prevent me from disrespectfully and immorally lying to my friends. Thus, additional justification would be needed, beyond simple appeal to respect for autonomy, in order to establish an enforceable informed consent requirement. That inescapable additional moral justification may turn out, if successful, to justify informed consent regulations and the surrounding ethos in full. It may do so even if the project of grounding informed consent in autonomy, and all other attempts to justify natural informed consent rights, founder.

However, I don't understand this much, besides a vague understanding that there is an inescapable additional justification that makes informed consent a legal requirement. Can you help me explain (or re-explain) why that inescapable additional justification exists?

Note that this justification cannot be one of the above arguments, because they are challenged already.

Meta: Why is the question about informed consent downvoted?

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    "Just a ..." is a rhetorical trick and you may be tricking yourself inadvertently! It is a legal right, and that is no small fact. – James K Nov 18 '20 at 8:44
  • I removed a part of this question because it was a question more suitable for law.stackexchange.com. If you want to know "why is this the law?", then posting on Politics Stack Exchange is correct. But if you want to know "what is the law in this situation?" then you might want to ask on Law.SE. Remember to tell them the jurisdiction, because laws vary around the world. – Philipp Nov 18 '20 at 15:52
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    The title as written is nonsensical. It does not make sense to ask what justifications for informed consent there are. If you instead mean to ask a different question, such as what justifications there are for a particular law demanding informed consent there are, then you should make that explicit. – Acccumulation Nov 18 '20 at 22:30
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    @Kevin I also disagree with "It is not the business of third parties to prevent me from disrespectfully and immorally lying to my friends.". I'd say that depends on the lie. In case of "You can jump, the bungee rope is fastened", third parties would be morally obligated to step in. – Jann Poppinga Nov 20 '20 at 7:30
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    This question is being discussed on meta. – Philipp Dec 23 '20 at 23:08
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First of all, politics is not about philosophy. Politics is about finding rules for society which are practical and which work for everyone, or at least for those who are in power. You can provide as many philosophical arguments as you want for why a certain rule is unethical. If the rule serves its purpose and there is no tangible benefit which justifies the effort to change it, then politics will be completely unimpressed by them.

So why does the rule of informed consent exist in the medical field?

  • It's in the interest of the majority. There are more people who are occasionally in need of medical care (pretty much everyone) than there are people working in the medical field. People generally like having rights. If you ask people in a democracy: "Do you want to vote the people who want to take away your right to make decisions about your own body or those who want to give you the right to decide what happens to you", the answer is pretty obvious.
  • It's questionable if it would even be in the interest of the medical lobby to abolish it. Medical professionals make life or death decisions every day, and occasionally they make the wrong decisions. This potentially puts a huge liability on them. Politics might be able to take the legal liability away from them, but they can not make the psychological liability disappear. When doctors have the right to ignore consent of their patients, then only they are responsible for what happens to the patient. With informed consent, they can get out of that responsibility by saying "I explained the risks and rewards to the patient, and then just did what they told me to do".
  • Historically, there were cases where governments gave medical professionals the permission to ignore informed consent, and medical professionals abused that right to perform experiments which were shocking violations of human rights. The concentration camp experiments performed by the Nazis are often mentioned, but other governments like the United States are not innocent in this regard either. Requiring informed consent without exception (at least for research purpose) appears like a useful legal safeguard against scandals like that.
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    Interesting around your first point, there are tens of millions of people in the US who vote for the people who want to take away the rights of women to make medical decisions about their own body with regards to abortion. A significant number of those people are voting that way specifically to have that right taken away from others and from themselves. – Kayndarr Nov 19 '20 at 2:52
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    @Kayndarr Please don't start another abortion debate here. That issue is far more complex (philosophical and political) than either side in the debate usually wants to admit (which is the main reason why those debates usually go nowhere). And it's far too complex and too controversial to serve as a useful example for this answer. – Philipp Nov 19 '20 at 9:49
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    And not all those who violate human rights, Japan's Unit 731 staff, face justice. They become state medical directors. – paulj Nov 19 '20 at 12:21
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    @Philipp It is important to educate those who erroneously believe all those who violated human rights during WWII were appropriately called out and punished through Allied courts. – paulj Nov 19 '20 at 12:26
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    @paulj But the answer does not even address the consequences for the people who performed these experiments. And I don't see how that's on-topic either. – Philipp Nov 19 '20 at 12:29
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To summarise the quote:

  • There may or may not exist "natural rights"
  • The right to informed consent may or may not be a "natural right"
  • Not all things that are "natural rights" are enforced by law.
  • For example my friends might have a natural right to be respected by me. But I am allowed by law to lie disrespectfully to them.
  • So "It is a natural right" is not enough to justify a law.
  • We can find other reasons for informed consent.
  • One such reason is that it builds trust between carer and patient.
  • These reasons may justify the law without having to discuss "natural rights".

The basic reason why such laws exist, is because of harm that was historically done by doctors who didn't work in a framework of law that requires informed consent (from Joesph Mengele back) . The laws are formed in response to (perceived) harm and to prevent that harm from recurring. The potential for harm in a carer-patient relationship is great.

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  • Why may natural rights not exist? Why would the law allow me to lie to my friends, if they have a natural right to be respected? If I can prove to the court that there couldn't be a harm that could possibly occur, then would I be fine to violate it? – Ooker Nov 18 '20 at 15:47
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    @Ooker It could be viewed as a phrasing from modal logic, although I would phrase it as "It is possible that natural rights exist and it is possible that natural rights do not exist" to draw a stronger connection using the terminology associated with modal logic. All things may exist except those things that are proven not to exist, and all things may not exist except those things that are proven to exist. – Cort Ammon Nov 18 '20 at 16:53
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    One might view that bullet as a test case for the model you are using to evaluate truth. If that bullet is unreasonable, it suggests you are either using a different logic than the author, or that you have some assumptions and/or proofs that the author did not. – Cort Ammon Nov 18 '20 at 16:54
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    @Ooker most if not all "natural rights" are nothing more than conventions in a particular society. The ancient Greeks discovered that fact empirically, when their empire included some tribes who considered the only "natural" and acceptable way to dispose of dead human remains was by burial, while other tribes considered the only "natural" method was cremation. – alephzero Nov 18 '20 at 20:43
  • @CortAmmon what bullet are you referring at? The "There may or may not exist "natural rights"" one? – Ooker Nov 19 '20 at 3:46
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The requirement of informed consent is a way to define what kind of relationship someone who is required to obtain it and someone from whom it must be obtained have, generally speaking, under the law.

Both regimes are options.

For example, there are some countries where lawyers are required to obtain informed consent from their clients for many decisions.

But, there are other countries where lawyers are required to act in the best interests of their clients, without regard to whether the client has input into the process or not, and potentially contrary to a client's wishes.

Deciding whether informed consent is required in the case of a particular kind of person providing services or taking actions in a particular context is basically a rules of the road kind of policy decision.

It isn't inherently better to have a system where people drive on the right side of the road, rather than the left side of the road. But it is inherently better to have everyone agree on which side of the road they are supposed to drive upon.

They way you interact with someone who has no duty to obtain informed consent putting the person working with them in a caveat emptor (i.e. "buyer beware") situation is very different from how you interact with someone who has a duty to obtain informed consent. But as long as everyone is clear when it is and is not required, people will behave appropriately within the relationship.

If you don't have a requirement of informed consent, you would expect people going into surgery to do extensive due diligence whenever possible and to negotiate detailed legal limitations on what they do and do not permit in writing in advance of the surgery.

If you do have a requirement of informed consent, the detailed third-party research is required and less consideration of every possibility eventuality is required. You can get first-party guidance from the person who is going to be doing the work, and you only have to consider the matters upon which your informed consent has been sought. Also, informed consent can work better when you don't have people dealing with each other who have interests directly adverse to each other. The doctor really doesn't care in terms of their personal well being, if you decide to go ahead with a proposed treatment about which information has been provided (except for earning a fee that plenty of other people are willing to pay to have similar work done to them), unlike, for example a vendor and purchaser negotiating of a price.

In a context like medicine where most people don't have the capacity to fully understand the pros and cons of a proposed course of treatment without expert assistance, informed consent can be a desirable rule of the road to choose.

In contrast, it is a rule of the road very rarely chosen legally for the purchase and sale of used houses, where the seller will often lack adequate knowledge, time is not of the essence, and the stakes in the transaction are not disproportionately small relative to the cost of doing independent due diligence. So, in those situations, informed consent of a buyer of a house to a purchase is not required and mere consent without the person seeking consent making an effort to inform that decision (potentially against their own interests) is not required.

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Natural Rights?

How do we even go about defining "natural rights"? Obviously, much has been written on this topic historically, but much of it relies on implicit values shared between the author and the audience. People of various faiths can and do disagree on values, and thus, on which rights are manifestly "natural". Even non-spiritual individuals will sometimes disagree on their values and the "naturalness" of a given right. However, I think there is a very trivial and obvious way to define "natural right" which is a kind of fundamental basis for morality independent of all faith systems, which is the notion of "reciprocity".

Golden Rule

Basically, for any action between two people, A and B, we just need to ask: "If I were A, how would I feel about this action?" and "If I were B, how would I feel?" It helps to also replace A and B with all possible other individuals to get a sense for whether the action should be allowed or prohibited. And this is just a slight formalization of the Golden Rule. Now, it is not guaranteed to create agreement between all pairs of individuals. But for the vast bulk of pairs and actions which are covered by "rights", it is a pretty reliable procedure.

Application

Do you want a doctor to conduct an experiment on you without your informed consent?
Before you say "I'm ok with that", read this Wikipedia entry completely. Even if you are a nihilist and don't care about what happens to you, are you ok with doctors performing arbitrary experiments on everyone you care about? I think it is not debatable that most individuals in the world will agree on the answers to these questions. Frankly, I think most people would even say: "As a doctor, I would not want to perform experiments on uninformed patients." Certainly, few people would want to express a desire to perform such experiments publicly. Even further than that, I think most people will say: "I would not wish to allow other doctors to perform arbitrary experiments on strangers I have never met."

Now, particularly racist or nationalist individuals may say: "I'm ok with experimentation on lesser races. In fact, I think it's a moral good." But if you challenge them on the principle: "Is non-consensual medical treatment acceptable on people you cannot identify?" then they must hedge their answer, because that could include people they care about. And reciprocity means that we should also ask the victims of the racists if they think experimentation on random individuals is good. And we should ask the racists if it is acceptable for racist-victim doctors to experiment on racists. When you see asymmetrical answers from the population, it's a pretty good indication that harm is involved and the result is advantage to one group or another, and not a "natural right" which should be protected by law.

Those facts together betray a kind of universal set of shared values that tells us why informed consent is fundamentally ethical and moral, regardless of weaker hand-wavy "challenges".

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  • I understand your point, but it basically the very first point in the article why informed consent should be required: protect the patients' health and welfare. However, the counterargument is that the patients can be biased and ignorant as well. I am not the only one who mind about my best; people around me (doctors, family) also do that as well. By your reciprocal principle, If I have an ignorance and make a decision that I'd regret years later, I'd love to be stopped now. In other words, I need someone to violate my consent. – Ooker Nov 19 '20 at 4:16
  • @Ooker It's not just about protecting the patient's health. Sometimes, nobody knows what the best course is. Sometimes, a patient can reject a best practice and get a better outcome. The point is to also respect the patient's autonomy. If you give doctors the authority to override the patient "in their best interest", then there is no point to obtaining consent in the first place. The point of "informing" is to give the patient the opportunity to make the best decision, not to guarantee the best outcome, which nobody really knows. – Lawnmower Man Nov 19 '20 at 5:41
  • As for autonomy, it's the second point of the article. Counterarguments for that include: the notion of respecting other's autonomy associates with their rationality, not their actual consent; many gross violations of informed consent do not directly block our autonomy; violating informed consent can have positive impact on autonomy. I think in the best, ideal scenario, everyone who care about the patient's health should be allow to participate to make the final decision, like a jury? – Ooker Nov 19 '20 at 6:52

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