Subsequent consent can be morally efficacious. First, it licenses nostalgia and dismissiveness no more than its prior cousin does. Second, it's coherent because linked to the mental state of not minding. Third, it's just as vulnerable to bilking as prior consent is, as is clear once we distinguish between basing moral assessments on expectations versus on actual outcomes. Fourth, mind control is illegitimate because it short circuits the subject's will, not because its consent is subsequent. Finally, our intuitions about rape (...) show that dissent sometimes outweighs consent in matters of sex, not that subsequent consent is always inefficacious. (shrink)

Over the course of its first seven editions, Principles of Biomedical Ethics has proved to be, globally, the most widely used, authored work in biomedical ethics. It is unique in being a book in bioethics used in numerous disciplines for purposes of instruction in bioethics. Its framework of moral principles is authoritative for many professional associations and biomedical institutions-for instruction in both clinical ethics and research ethics. It has been widely used in several disciplines for purposes of teaching in the (...) classroom, during conferences, etc. (shrink)

In many Western jurisdictions, the law presumes that adult persons, and sometimes children that meet certain criteria, are capable of making their own health care decisions; for example, consenting to a particular medical treatment, or consenting to participate in a research trial. But what exactly does it mean to say that a subject has or lacks the requisite capacity to decide? This last question has to do with what is commonly called “decisional capacity,” a central concept in health care law (...) and ethics, and increasingly an independent topic of philosophical inquiry. (shrink)

Honoring a living will typically involves treating an incompetent patient in accord with preferences she once had, but whose objects she can no longer understand. How do we respect her precedent autonomy by giving her what she used to want? There is a similar problem with subsequent consent: How can we justify interfering with someone''s autonomy on the grounds that she will later consent to the interference, if she refuses now?Both problems arise on the assumption that, to respect someone''s autonomy, (...) any preferences we respect must be among that person''s current preferences. I argue that this is not always true. Just as we can celebrate an event long after it happens, so can we respect someone''s wishes long before or after she has that wish. In the contexts of precedent autonomy and subsequent consent, the wishes are often preferences about which of two other, conflicting preferences to satisfy. When someone has two conflicting preferences, and a third preference on how to resolve that conflict, to respect his autonomy we must respect that third preference. People with declining competence may have a resolution preference earlier, favoring the earlier conflicting preference (precedent autonomy), whereas those with rising competence may have it later, favoring the later conflicting preference (subsequent consent). To respect autonomy in such cases we must respect not a current, but a former or later preference. (shrink)

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach that emphasizes duties or rules (deontology) or that emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing (...) so the agent will be acting in accordance with a moral rule such as “Do unto others as you would be done by” and a virtue ethicist to the fact that helping the person would be charitable or benevolent. (shrink)

This book is about the ethical issues that clinicians encounter as they care for patients and is written to assist those who serve on hospital ethics committees as they deliberate about appropriate action in difficult ethical cases.

The predominant view of moral virtue can be traced back to Aristotle. He believed that moral virtue must involve intellectual excellence. To have moral virtue one must have practical wisdom - the ability to deliberate well and to see what is morally relevant in a given context. Julia Driver challenges this classical theory of virtue, arguing that it fails to take into account virtues which do seem to involve ignorance or epistemic defect. Some 'virtues of ignorance' are counterexamples to accounts (...) of virtue which hold that moral virtue must involve practical wisdom. Modesty, for example, is generally considered to be a virtue even though the modest person may be making an inaccurate assessment of his or her accomplishments. Driver argues that we should abandon the highly intellectualist view of virtue and instead adopt a consequentialist perspective which holds that virtue is simply a character trait which systematically produces good consequences. (shrink)

This is the third volume of Joel Feinberg's highly regarded The Moral Limits of the Criminal Law, a four-volume series in which Feinberg skillfully addresses a complex question: What kinds of conduct may the state make criminal without infringing on the moral autonomy of individual citizens? In Harm to Self, Feinberg offers insightful commentary into various notions attached to self-inflicted harm, covering such topics as legal paternalism, personal sovereignty and its boundaries, voluntariness and assumptions of risk, consent and its counterfeits, (...) coercive force, incapacity, and choice of death. (shrink)

I take as my starting point the “one very simple principle” proclaimed by Mill in On Liberty … “That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. He cannot rightfully be compelled to do (...) or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.”. (shrink)

The legal basis of informed consent in Texas may on first examination suggest an unqualified affirmation of persons as the source of authority over themselves. This view of individuals in the practice of informed consent tends to present persons outside of any social context in general and outside of their families in particular. The actual functioning of law and medical practice in Texas, however, is far more complex. This study begins with a brief overview of the roots of Texas law (...) and public policy regarding informed consent. This surface account is then contrasted with examples drawn from the actual functioning of Texas law: Texas legislation regarding out-of-hospital do-not-resuscitate (DNR) orders. As a default approach to medical decision-making when patients lose decisional capacity and have failed to appoint a formal proxy or establish their wishes, this law establishes a defeasible presumption in favor of what the law characterizes as “qualified relatives” who can function as decision-makers for those terminal family members who lose decisional capacity. The study shows how, in the face of a general affirmation of the autonomy of individuals as if they were morally and socially isolated agents, space is nevertheless made for families to choose on behalf of their own members. The result is a multi-tier public morality, one affirming individuals as morally authoritative and the other recognizing the decisional standing of families. (shrink)

Book reviewed in this article: Principles of Biomedical Ethics. By Tom L. Beauchamp and James F. Childress.

1. IntroductionA paternalistic act is one in which the protection or promotion of a subject's welfare is the primary reason for attempted or successful coercive interference with an action or state of that person. My aim in this paper is to determine the conditions under which such acts are Justified. The route I take is through the concept of consent, with actual consent providing the foundation for a rather complex condition which I claim is necessary and sufficient for the Justification (...) of paternalism.Because a paternalistic act apparently violates a subject's right to non-interference, it constitutes a problem in the general area of rights. Ideally, then, one should have a developed and convincing theory of rights — that is, a theory which contains an analysis of the concept of a right, and offers solutions to the central problems, e.g. who has rights and why, what considerations override prima facie rights, and how the relative importance of prima facie rights is determined — from which the solutions to various problems about paternalism can be derived. (shrink)

Some philosophers believe that appeals to promoting or maximizing good consequences are a suspect way of attempting to justify coercive interference with another person's actions. Suppose that is true. If there is a presumption that individuals have a right not to be coercively interfered with, then, foregoing utilitarian type appeals, it would seem that the only way to justify coercive interference of a paternalistic sort would be to show that under certain conditions the presumption fails.

Commentators routinely urge that it is morally permissible forcibly to treat psychiatric patients (1) to preserve the patient's best interests and (2) to restore the patient's autonomy. Such arguments specify duties of beneficence toward others, while appreciating personal autonomy as a positive value to be weighted against other factors. Varying by jurisdiction, legal statutes usually require, in addition, at least (3) that there exists the threat of harm to self or others. In this paper, I argue against embracing the first (...) two elements of this prevailing view. I also argue for a very restricted reading of the third element, based on the moral limits of permissible state action. (shrink)

Book reviewed in this article: Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine. By Albert R. Jonsen, Mark Siegler, and William J. Winslade.

Peter Gardner; Paternalism and Consent in Education, or One Day You’ll be Grateful, Journal of Philosophy of Education, Volume 17, Issue 1, 30 May 2006, Pages 5.

Highlights of this edition include: / Important new material addressing federal privacy regulations, disclosure of medical errors, limits on residents'...

The goal of my comments regarding the case study of Eve Hyde — presented in the introduction of this symposium — is not first and foremost to resolve the conflict between individual autonomy and medical paternalism regarding non-consensual psychiatric treatment. Instead, the goal is to step back far enough from what is generally accepted as the morally appropriate basis for non-consensual psychiatric treatment, including involuntary hospitalization and medication, and to ask very basic questions about when patients may permissibly be treated (...) without their consent. My goal, in short, is Socratic — to explore aspects of what we take for granted in order better to determine whether we ought to take them for granted. Commentators routinely urge that it is morally permissible forcibly to treat psychiatric patients, such as Eve Hyde, in order to preserve the patient’s best interests and restore the patient’s autonomy. Such arguments typically specify duties of beneficence toward others, while appreciating personal autonomy as a positive value to be weighed against other factors. (shrink)

Some philosophers believe that appeals to promoting or maximizing good consequences are a suspect way of attempting to justify coercive interference with another person's actions. Suppose that is true. If there is a presumption that individuals have a right not to be coercively interfered with, then, foregoing utilitarian type appeals, it would seem that the only way to justify coercive interference of a paternalistic sort would be to show that under certain conditions the presumption fails.

Peter Gardner; Paternalism and Consent in Education, or One Day You’ll be Grateful, Journal of Philosophy of Education, Volume 17, Issue 1, 30 May 2006, Pages 5.