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only then can their choices be seen as reflecting their rational
autonomy. This line of thought risks justifying both too much and
too little.
Appeals to conceptions of rational autonomy may justify too
much where individuals choose dire alternatives in the appropriate
way: would consensual cannibalism, consensual torture or consensual
How to rethink informed consent 71
killing be acceptable, provided victims choose them in the appropriate
way? Even if the victim s consent cannot justify these sorts of illegal
action, can it justify interventions that are within the law but more
risky than available alternatives, provided they are chosen in the
appropriate way? Or will such cases not arise because clinicians and
researchers (not to mention research ethics committees) will not
propose or sanction unnecessarily risky treatment? But if that is the
situation, then can we still claim that rational autonomy, operational-
ised by informed consent procedures, is a fundamental principle of
medical and research ethics? Or would this move concede that other
standards, in which consent plays no part, are of equal importance?
In other cases appeals to rational autonomy may justify too little:
they have nothing to say about the treatment of non-competent
patients, or about interventions whose complexity overwhelms the
cognitive capacities of (otherwise) competent patients and research
participants. Yet if we require patients and research subjects to
exercise demanding conceptions of rational autonomy, failure of
competence will more often be overtaxed, and the number of cases
in which consent cannot be given will rise.
These realities are often obscured in discussions of medical and
research ethics by a range of tacit assumptions. It is assumed that
clinicians and researchers will not intend to injure their patients, and
that they will not propose interventions that they think useless,
unprofessional, too risky or illegal. Rather, they will propose only
interventions that they take to be lawful and professionally accept-
able, reasonably likely to benefit (the patient or others with the same
condition) and unlikely to injure. These assumptions tacitly limit the
choices patients and research subjects are offered to approved
options. Reliance on these assumptions is in great tension with the
thought that informed consent procedures are fundamental to clinical
and research ethics because they ensure respect for individual
autonomy. If individual autonomy presupposes a large number of
normative constraints that are not open to choice, those other nor-
mative standards will do a lot of the ethical work, and respect for
individual autonomy will not be the sole, nor perhaps the main, basis
for justifying medical and research practice. More provocatively, one
72 Rethinking Informed Consent in Bioethics
might say, the standard model of informed consent is based on
disclosures that inform individual decision-making, and paradoxi-
cally sees patient autonomy and the autonomy of research subjects
as merely responsive. Patients are typically asked to choose or
refuse from a very limited menu (often a menu of one item);
research subjects to choose or refuse to participate in a single
project. Do appeals to autonomy in biomedical practice perhaps
presuppose and rely on a residual paternalism that frames and
protects the supposed exercise of individual autonomy?
JUSTI FYI NG CONSENT TRANSACTI ONS: CONSENT AS
WAI VER
If, on the other hand, we think of informed consent as embedded in
communicative transactions, we can take a broader and (we believe)
more convincing view of its justification. In this section we set out
an alternative approach to the justification of informed consent, on
the assumption that it is a distinctive type of communicative trans-
action. Informed consent transactions are typically used to waive
important ethical, legal and other requirements in limited ways in
particular contexts. Where informed consent is important or
required, it has to meet a range of standards, which we discuss in
the later sections of this chapter. We shall deal with questions of
justification first, because arguments for the scope of consent trans-
actions, and for the standards they must meet, cannot easily be set
out without a clear understanding of the justification of informed
consent.
The use of consent transactions to waive ethical or legal require-
ments is well understood in everyday life. In consenting we waive
certain requirements on others not to treat us in certain ways (some-
times this will include waiving rights), or we set aside certain expect-
ations, or license action that would otherwise be ethically or legally
unacceptable. Informed consent has a role only where activity is
already subject to ethical, legal or other requirements. We do not
have to seek others consent to action that we have every right to do,
or to meet others legitimate expectations. I do not have to request
How to rethink informed consent 73
others consent to cross the road, or to arrive at work on time. (The
absurdity of such requirements is even more evident if we ask whose
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