In this paper I attempt a general explanation of the role played by the reasonable person in law, especially but not only in the common law. I relate my explanation to some problems about the very nature of law, and some problems about the ideal of the rule of law.

Nel Noddings, one of the central figures in the contemporary discussion of ethics and moral education, argues that caring--a way of life learned at home--can be extended into a theory that guides social policy. Tackling issues such as capital punishment, drug treatment, homelessness, mental illness, and abortion, Noddings inverts traditional philosophical priorities to show how an ethic of care can have profound and compelling implications for social and political thought. Instead of beginning with an ideal state and then describing a (...) role for home and family, this book starts with an ideal home and asks how what is learned there may be extended to the larger social domain. Noddings examines the tension between freedom and equality that characterized liberal thought in the twentieth century and finds that--for all its strengths--liberalism is still inadequate as social policy. She suggests instead that an attitude of attentive love in the home induces a corresponding responsiveness that can serve as a foundation for social policy. With her characteristic sensitivity to the individual and to the vulnerable in society, the author concludes that any corrective practice that does more harm than the behavior it is aimed at correcting should be abandoned. This suggests an end to the disastrous war on drugs. In addition, Noddings states that the caring professions that deal with the homeless should be guided by flexible policies that allow practitioners to respond adequately to the needs of very different clients. She recommends that the school curriculum should include serious preparation for home life as well as for professional and civic life. Emphasizing the importance of improving life in everyday homes and the possible role social policy might play in this improvement, _Starting at Home_ highlights the inextricable link between the development of care in individual lives and any discussion of moral life and social policy. (shrink)

What does the law demand when it requirescitizens to conform to standards ofreasonableness? I propose and defend theview that the law should demand thatcitizens conform their behavior to someactual conduct in society. I contrast thisidea against what might be called the``empty vessel'' view of reasonableness,where the standard is understood tofunction like an empty vessel in the law,allowing courts to use various norms andmoral judgments to determine what seemsreasonable in the circumstances. Theempty vessel account is the more commonapproach for understanding reasonableness,but (...) it leaves obscure whether and howassessments about appropriate conductconnect with facts about citizens' actualconduct. I argue for a ``binocular'' viewthat focuses our attention on actualpractices and thereby establishes howthese standards provide a stable guide toconduct and support the rule of law. (shrink)

The General Medical Council renewed its guidance on consent in 2020. In this essay, I argue that the 2020 guidance does not advance on the earlier, 2008 guidance in regard to treatments that doctors are obliged to offer to patients. In both, doctors are instructed to not provide treatments that are not in the overall benefit, or clinical interests, of the patient; although, patients are absolutely entitled to decline treatment. As such, consent has two aspects, and different standards apply to (...) each aspect. To explore this paradigm, I propose the reconceptualisation of consent as a person’s freedom to achieve treatment, using Amartya Sen’s approach. Sen explains that freedom has two aspects: process and opportunity. Accordingly, a patient’s freedom to achieve treatment would comprise a process for the identification of proper treatment, followed by an opportunity for the patient to accept or decline this treatment. As per Sen, the opportunity aspect is to be assessed by the standard of public reason, whereas the standard for the process aspect is variable and contingent on the task at hand. I then use this reconceptualised view of consent to analyse case law. I show that senior judges have conceived the patient’s opportunity to be encompassed in information, which is to be decided by public reason. On the other hand, the process aspect relies on the private reason of medical professionals. Given the nature of professionalism, this reliance is inescapable, and it is maintained in the case law that is cited in both guidances. (shrink)

The decision of the High Court in Bell v Tavistock has excited considerable discussion about lawful consent for puberty-blocking drug treatment for children with gender dysphoria. The present paper draws attention to a wider question that surfaces through this case: is informed decision-making an adequate practical tool for seeking and obtaining patients’ consent for medical treatment? Informed decision-making engages the premises of the rational choice theory: that people will have well-crystallised health goals; and, if they are provided with sufficient information (...) about medical treatments, then they will be able to choose the treatment that satisfies their goals. Whilst appealing, the informed decision-making paradigm is assailed by various fallacies, which apply not only to children but also to adults. In Bell v Tavistock, the High Court seems to have recognised such fallacies, and it rejected informed decision-making as an adequate tool for consent from children with gender dysphoria. Similar considerations apply to adults in various situations. Thus, Bell v Tavistock can be seen as an attempt to refine the views on the consent that were expressed by the Supreme Court in Montgomery. It can be inferred that the Supreme Court did recognise the limitations of informed decision-making, but it did not develop this point. Further work is required to formulate an adequate model of decision-making, and Bell v Tavistock serves as a useful reminder to rethink informed decision-making as the device for consent. (shrink)

Laura Odwazny and Benjamin Berkman have raised several challenges regarding the new reasonable person standard in the revised Common Rule, which states that in‐ formed consent requires potential research subjects be provided with information a reasonable person would want to know to make an informed decision on whether to participate in a study. Our aim is to offer a response to the challenges Odwazny and Berkman raise, which include the need for a reasonable person standard that can be applied consistently (...) across institutional review boards and that does not stigmatize marginal groups. In response, we argue that the standard ought to be based in an ordinary rather than ideal person conception of reasonable person and that the standard ought to employ what we call a liberal constraint: the reasonability standard must be malleable enough such that a wide variety of individuals with different, unique value systems would endorse it. We conclude by suggesting some of the likely consequences our view would have, if adopted. (shrink)

Research from behavioural sciences shows that people reach decisions in a much less rational and well-considered way than was often assumed. The doctrine of informed consent, which is an important ethical principle and legal requirement in medical practice, is being challenged by these insights into decision-making and real-world choice behaviour. This article discusses the implications of recent insights of research on decision-making behaviour for the informed consent doctrine. It concludes that there is a significant tension between the often non-rational choice (...) behaviour and the traditional theory of informed consent. Responsible ways of dealing with or solving these problems are considered. To this end, patient decisions aids are discussed as suitable interventions to support autonomous decision-making. However, current PDAs demand certain improvements in order to protect and promote autonomous decision-making. Based on a conception of autonomy, we will argue which type of improvements are needed. (shrink)

It is universally accepted in bioethics that doctors and other medical professionals have an obligation to procure the informed consent of their patients. Informed consent is required because patients have the moral right to autonomy in furthering the pursuit of their most important goals. In the present work, it is argued that evidence from psychology shows that human beings are subject to a number of biases and limitations as reasoners, which can be expected to lower the quality of their decisions (...) and which therefore make it more difficult for them to pursue their most important goals by giving informed consent. It is further argued that patient autonomy is best promoted by constraining the informed consent procedure. By limiting the degree of freedom patients have to choose, the good that informed consent is supposed to protect can be promoted. (shrink)

What are the criteria for reasonable clinical judgements? The reasonableness of macro-level decision-making has been much discussed, but little attention has been paid to the reasonableness of applying guidelines generated at a macro-level to individual cases. This paper considers a framework for reasonable clinical decision-making that will capture cases where relevant guidelines cannot reasonably be followed. There are three main sections. (1) Individual claims on healthcare from the point of view of concerns about equity are analysed. (2) The demands of (...) responsibility and equity on professional clinical performance are discussed, and how the combination of these demands emerges into seven requirements that constitute the framework is explored. Since this framework is developed to assist in reasonable clinical decision-making, practical implications of all these requirements are also suggested. (3) Challenges concerning the framework are discussed. First, a crucial presumption that the framework relies upon is considered—namely, clinicians’ willingness to justify their decisions as requested. Then how public deliberation may influence clinical decision-making is discussed. Next is a consideration of how clinicians’ need to have confidence in their own judgements in order to perform in a manner worthy of trust would be compatible with adherence to the framework supported by public deliberation. It is concluded that fair distribution in the interplay between macro- and micro-level considerations can be secured by legitimising procedures on each level, by ensuring well-organised and continuing public debate and by basing individual clinical judgements upon well-justified and principled normative bases. (shrink)

Care theory offers a way to overcome a weaknessof liberalism – its reluctance to intervene inthe private lives of adults. In caring for thehomeless, we must sometimes use a limited formof coercion, but our intervention is alwaysinteractive, and the process of finding asolution is one of negotiation between theneeds expressed by the homeless and the needswe infer for them.