Tom Dougherty: Informed Consent, Disclosure, and Understanding

Dougherty, T. (2020), Informed Consent, Disclosure, and Understanding. Philosophy & Public Affairs, 48: 119-150. https://doi.org/10.1111/papa.12164

Stephen Kershnar December 8, 2021 at 1:38 PM

THE CONTEXT-OBJECTION TO A SUFFICENTLY FAVORABLE POSITION?

Consider the Absolute Position Principle & Context Understanding Condition. In particular, consider the “sufficiently favorable position.”

What justifies the amount of information necessary to put one in a sufficiently favorable position?

(1) Reasonableness. This begs the question as to what makes it reasonable.

(2) Good Consequences / Efficiency. This makes a right-basis depend on forward-looking consideration.

(3) Basic. This is not a basic fact because the information-requirement is tied with autonomy, and this is an instrumental justification.

(4) Autonomy 1. The threshold for consent – overall quality of consent – varies with context. For example, consent to buy coffee might have a different threshold than consent to euthanasia, surgery, or writing a will. The contextual element tells us that we need to consider factors such as the consenter’s future autonomy or interest. Yet this seems to prevent consent from being a backward-looking justification.

(5) Autonomy 2. Context also arises in setting (a) the floor on specific levels of competence, voluntariness, and information and (b) how these elements combine to tell us whether the overall quality of consent was sufficient for consent to be valid.

Stephen Kershnar December 8, 2021 at 2:00 PM

THE THIRD-PARTY-DISCLOSURE OBJECTION

(1) Valid consent depends on, and only on, facts about the consent-giver’s psychology and its relation to what happens to him.

(2) If (1), then valid consent does not depend on whether the consent-recipient satisfies his duty to disclose.

(3) Hence, valid consent does not depend on whether the consent-recipient satisfies his duty to disclose. [(1), (2)]

Assume that a person validly consents only if he is competent, acts voluntarily, and is informed. Whether these facts are met is independent of whether anyone in particular – for example, the consent-recipient – gave him the relevant information.

These conditions are met if a third party ensures the conditions are met, for example, by providing the relevant information.

David H March 9, 2022 at 12:07 PM

Stipulative, rather uninformative taxonomy:

Not clear to me that the taxonomy is needed, widely shared, intuitive, rather than stipulative. Then the stipulated categories like contextual understanding condition are shown not to be coextensive in what they cover with the disclosure condition

David H March 9, 2022 at 12:10 PM

Transparency comes apart from Understanding and facilitative disclosure principle by treating the disclosure as towards the research subject who doesn’t need it to give valid consent when it the public at large.

Transparency is part of disclosure to someone else than research subject (145)

David H March 9, 2022 at 12:11 PM

Novel Objection of “Surprise” to Description Principle:

It is not really that novel since many patients have said to the doctor don’t disclose the prognosis or treatment but just treat me like you would your son or daughter.

David H March 9, 2022 at 12:12 PM

Informed Consent vs. Valid Consent:

we are promised the former and given an inadequate treatment of the latter which subsumes the former. Ineffective history of medicine means no informed consent but not invalid consent.

David H March 9, 2022 at 12:13 PM

Contemporary Medicine could be radically wrong about risks but the consent is valid. Even witch doctor consent is valid by reasonable standards of community

David H March 9, 2022 at 12:13 PM

Is informed consent true information or reasonable claims? If the former, then it is rare and surely isn’t coextensive with valid consent. A more nuanced discussion of the difference is required.

David H March 9, 2022 at 12:14 PM

Understanding Condition is too strong:

Doctor may be innocently ignorant of the risks as they are not known to contemporaries but surely consent is valid

David H March 9, 2022 at 12:15 PM

Facilitative Disclosure Principle isn’t Necessary:

Imagine patient is an MD who knows more than the MD treating her. Does the latter have to disclose or would treatment description suffice?

David H March 9, 2022 at 12:18 PM

Disclosure as proof of Doctor’s Competency:

Perhaps latter should disclose so former knows that her doctor knows what he is doing

David H March 9, 2022 at 12:22 PM

Transparency:

It is unclear what it is and why it is owed patient. If it is to install public confidence in medicine, then it is owed not to the patient and so shouldn’t be seen as a failure of disclosure that doesn’t endanger consent

Transparency and Contextual Understanding:

If it is owed to the public then it might be owed to readers or editors of the journal but not the patient. So is it is part of contextual understanding condition

David H March 9, 2022 at 12:22 PM

Hazardous Waste:

Public official may have duties to disclose private doctors do not. TD moves too fast 125-6

David H March 9, 2022 at 12:23 PM

Ignorance of effects and understanding of risks is probably reversed. I suspect objective and subjective probabilities is what is not understood. Also, large studies, double blind, with similar subjects etc. (131)

David H March 9, 2022 at 12:24 PM

Informed Consent in Medicine vs. Army, Marriage, Investing, logging jobs:

1) greater harm and if not, a harm to body 2) harm inflicted by the consent recipient. 3) Information differential 4) commonsense harms

David H March 9, 2022 at 12:25 PM

Disclosing funding or Disclose Purpose of funding:

if I fund a study in whether homosexuality is a disease should I be identified?

Researcher went to school on a tobacco co-scholarship. If needn’t disclosure that, why reveal study’s funds?