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Effective consent is indeed a legal fiction
Since the late 1960s, the legal doctrine of consent has occasionally been subject to severe criticism from within the bioethical discourse. The criticism was often based on observations indicating that consents and refusals, which had been considered valid from legal or institutional points of view, had frequently failed to reflect genuinely autonomous decision making, hence genuinely autonomous choices.
This has led several critics to conclude that informed consent is a legal fiction. To clarify the concept, a legal fiction is a supposition of fact taken to be true by the courts of law, irrespective of whether it is true or not, and even though it might not be true (see “fiction” in The Concise Dictionary of Law).1 What these critics probably meant to say was that the law deems any person who has given a legally valid consent to be genuinely task specifically autonomous, regardless of whether this is true or not and even though it might not be true. In other words, informed consent is a legal fiction, since it presupposes—that is, claims to reflect—genuine task specific autonomy, however baselessly.
It was precisely this potentially embarrassing conclusion that prompted Faden and Beauchamp (FB) to develop a brilliant and remarkably effective argument in defence of the legal doctrine of consent. In their seminal work, AHistory and Theory of Informed Consent, they indeed acknowledged that effective consent (the term they had specifically assigned to legally and institutionally valid consents and refusals) often fails to be compatible with autonomous authorisation (the term they had specifically assigned to genuine task specific autonomy). Indeed, they recognised that effective consent does not necessarily entail autonomous authorisation. They argued, however, that the former is not a legal fiction, since it does not presuppose the …