Extended Consent

We usually consent to some action immediately prior to that action. Sometimes our past consent may be thought to extend into the future. Living wills or last directives are now widely accepted and may be thought of as a kind of extended consent. Even if extended consent is widely accepted there remain some problems connected to the concept. The Law Commission’s report defines extended consent in section 2.11 of "Consent in Sex Offences"   as follows,

“If what is relied on is past agreement, this will mean both, (a) that, when previously given, the agreement must have extended to the doing of the act at that later time, and (b) that it must not have been withdrawn in the meantime. We believe that it should be made clear that consent may be express or implied.”

The same report gives the following example of extended consent in section 4.54.

“For example, at 8 pm P makes it clear that she is looking forward to having intercourse with D that night. By 11 pm she is too drunk to know what she is doing, but D has intercourse with her anyway. Can it be said that she does not (because she cannot) consent to the intercourse at the material time, namely the time of the intercourse? In our view it cannot. Consent is not a state of mind which must invariably exist at the time of the act consented to, but an expression of agreement to that act – the granting of permission for it.”

The report’s authors seem to believe P’s consent is valid and that D commits no offence. Their belief seems to be based on the assumption that there are no conceptual problems with extended consent. The starting point for this posting originated in a piece by Jeremy Stangroom in the Philosophers Magazine’s blog, see 'More Sex when drunk'. Stangroom believes, as I do, that P’s extended consent would not be valid. If we are correct then either there is no such thing as extended consent or the report’s definition is inadequate. In this posting I will attempt to give a more adequate definition of extended consent.

The concept of extended consent is certainly useful. For instance, if a patient is about to undergo surgery then her informed consent is usually sought sometime prior to the actual surgery rather than when she is being wheeled into the operating theatre. The use of extended consent in this instance is good practice as it gives the patient time to absorb the information she needs to make a balanced decision and means she is less likely to make a decision under stress than if she made her decision immediately prior to her operation. Of course such a patient may withdraw her extended consent at any point up to the time her surgery takes place. The idea of extended consent is also useful in cases in which a decision has to be made whether or not to resuscitate a terminally ill patient. Such a decision is made much easier if the patient has made a last directive or living will. It might be thought the further consent is extended into the future the more likely it is to lose its validity. However the above examples from medical practice show that in practice this is not always true. None the less I shall argue below that extended consent should not be extended too far. Intuitively someone’s consent to surgery is perfectly valid tomorrow or even the day after but the same does not apply to intercourse. In what follows I will firstly argue what really matters for extended consent is the basis on which the consent giver makes her decision and secondly how far her consent is extended.

If someone consents to intercourse on what does she base her decision? Someone certainly doesn’t make a decision to have intercourse based on pure reason. I would suggest her consent is simply based on how she feels, on her mood. If this is accepted then it is hard to see how she could possibly extend her consent for intercourse into the future. She cannot know what sort of mood she will be in, how she will feel, in a few hours time. If I am correct then consent to intercourse may only be given at the time intercourse is going to take place contrary to the Law Commissions report. However if someone consents to surgery then her mood at either the time she made her decision or when surgery takes place seems to be irrelevant. When someone consents to surgery she makes an informed consent decision. Her decision is made using practical reason and based on the information provided by her medical team together with her belief about what is best for her. Practical reason doesn’t vary as moods do. It follows provided the patient’s circumstances don’t change her consent decision would be the same tomorrow or even next week. It further follows consent based on ongoing factors using practical reason can be extended to some degree.

I now want to examine just how far consent based on continuing facts using practical reasoning can be extended. Can for instance the hypothetical withholding of consent be extended years into the future as happens with living wills? The nature of practical reason does not change over time so changes in practical reason cannot be used to justify limiting the extension of consent. An essential element of any living will is that the state of affairs relevant at the time the will is implemented is the same as the facts envisaged when the will was made. It might be thought provided this element is satisfied that there is no problem in extending the withholding of consent as expressed in living wills. Such a thought would be premature for what also matters is someone’s beliefs about what is best for her given these facts. Her belief about what is best for her depends on what she “cares about”. In this posting as in previous postings in this blog I will assume to “care about” something means someone identifies herself with which she cares about, see (1). Caring about in this sense has nothing to do with whether someone is in the mood for intercourse or not. When someone “cares about” something this “caring about” must have some persistence, see (2). Of course when someone attends to other things she doesn’t have to actively care about something she cares about but she does have to have a disposition to care about it in the appropriate circumstances. It would seem to be nonsensical to say if someone “cares about” something she could suddenly abandon this care for ever. When the term “care about” is used in the above sense it is roughly equivalent to loving something, see (3). It once again might be thought because what we love, or “care about”, must have persistence that that there is no problem in extending the withholding of consent as expressed in living wills. Once again such a thought would be premature. Love must have some persistence but both someone and what she loves can gradually change over time.

The above suggests that whilst consent can be extended there are limits to just how far this extension can go. In particular there might be problems with extended consent in relation to living wills. The first problem concerns the persistence of what someone “cares about”.  What someone “cares about” must have some persistence, perhaps a few years, but does what someone “cares about” always persist for a decade or even decades? The second problem with living wills is that they anticipate hypothetical events. The will maker may have no experience of these events to guide her. The patient giving her consent for surgery tomorrow is not simply considering a hypothetical event but one that is actually going to happen. Someone attempting to give her consent to intercourse later that night has presumably some experience of intercourse. The realness of these situations gives someone’s decisions focus. It may be that someone when faced with a hypothetical situation may believe she would choose a particular course of action in that situation. Later when actually in this situation, she may discover she was wrong and that she cannot follow that particular course of action. I would argue much the same is true of living wills. Someone may specify in a living will she would not consent to treatment in a certain hypothetical situation. However were this situation to occur she might well have consented had she been able.

In spite of these problems I believe living wills can be useful subject to the proviso that these wills are fairly recent. For instance if a patient learns she has a terminal disease this would be the ideal time to make a living will. If a living will is fairly recent it should be realistic to assume it represents a patient’s extended consent because what she “cares about” should not have changed during period between the making and the implementation of the will. I also believe if the validity of a living will is limited by time that this limitation is likely to force the will maker focus on the hypothetical situation more seriously than she would do if considering situations decades into the future. Perhaps living wills should only be valid for up to five years.

In the light of my discussion above I would redefine an extended consent decision as follows. An extended consent decision is one made using practical reason which is based on what someone “cares about” rather than her current mood, which is valid only for a limited period of at the most a few years and has not been revoked. Someone might object that this is not a useful definition in practice as it is difficult to separate what someone “cares about” from her fleeting moods and emotions. I accept this difficulty but would argue it doesn’t have the same weight when applied to extended consent. I would suggest “caring about” a decision involves being satisfied with that decision. I would further suggest this is true irrespective of whether caring about is defined as simply a matter of will or is connected to some emotional dispositions. I would further suggest that being satisfied with a decision simply means no restlessness with the decision or any desire to change it. If my suggestions are accepted then, because extended consent by its nature allows ample time for any restlessness with someone’s consent decision to become apparent, we can be satisfied in the absence of this restlessness that her decision is based on what she “cares about”.

1.      Frankfurt, H. (1988) The Importance of What We Care About. Cambridge University Press page 83.

2.      Frankfurt, H. (1988), page 84.

3.     Frankfurt, H. (1999) Necessity, Volition, and Love. Cambridge University Press, page 165.

Prisoners and the Right to Vote

In the UK prisoners lose the right to vote whilst serving their sentence. In the US, except in Maine and Vermont, prisoners also lose this right and in some states this disenfranchisement continues after they have served their sentences. In this posting I want to examine whether prisoners should retain this right whilst serving their sentences. The vast majority of philosophical literature seems to suggest that they should. My intuitions suggest to me they should not. I hope my examination will either force me to challenge my intuitions or be able to justify them. Before proceeding I must make it clear I am only interested in whether prisoners should retain the right to vote and that I am not concerned whether the European Human Rights Court should play any part in UK legislation.

In order to look for an argument to support my intuitions I will firstly examine society’s aims when it sends people to prison. Firstly we send people to prison to protect ourselves by ensuring they commit no more crimes for the period of their sentence. This aim is achieved simply by sending offenders to prison. Depriving offenders of the right to vote does nothing to further this aim. Secondly we send offenders to prison in order to rehabilitate them. In the light of the re-offending figures for prisoners I’m not sure this aim is very realistic. However even if we accept this aim is realistic it is hard to see how the disenfranchisement of prisoners might further the aim. It is possible to allow prisoners to vote using a postal ballot. It follows the disenfranchisement of prisoners is not a necessary part of their imprisonment. It further follows if the disenfranchisement of prisoners is to play a meaningful part in the rehabilitation of prisoners that disenfranchisement must be justifiable by itself. Someone might argue an offender’s disenfranchisement might cause him to reconsider his attitude to life and so play some small part in his rehabilitation. I’m not convinced by such an argument, if I’m correct then it follows that depriving prisoners of the right to vote cannot be justified as part of their rehabilitation. Lastly and perhaps most importantly we send people to prison in order to punish them. It follows if we are to justify disenfranchisement as a punishment it also must be justifiable by itself. Most prisoners do not see disenfranchisement as a punishment. It follows for most prisoners disenfranchisement cannot be justified because it is a punishment. However this may not be true for all prisoners as I will argue later.

I have argued that for most prisoners do not see disenfranchisement as a punishment and hence disenfranchisement cannot be justified as such. However even if we accept the above as I do, it does not automatically follow if such prisoners are already disenfranchised that we have a reason to change the status quo. I have suggested that most prisoners do not see disenfranchisement as a punishment. It follows that most prisoners do not value the right to vote. If we don’t grant the right to vote to those prisoners who don’t value having this right then we do them no harm. It further follows that from a consequentialist point of view we have no reason to give most prisoners voting rights.

Someone might attempt to extend the above argument concerning valuing the right to vote to all prisoners. First she might point out voting is an essential element of any democratic society. She might then argue that prisoners don’t value society simply because they offend whereby damaging society. It follows that because prisoners don’t value society they don’t value the right to vote. It further follows if society does not grant prisoners the right to vote then it does them no harm as this right is not something they value. Lastly she might suggest prisoners see themselves as living in society rather than being part of society.

I am doubtful if in practice many prisoners actually value the right to vote. Nonetheless I would reject the above argument because I think it is possible that some prisoners do value this right even if they fail to respect society. However if some prisoners do value the right to vote then their valuation gives us a possible reason to disenfranchise them. If we deprive someone of something he values justly we may do so in order to punish him. It follows we have a possible justification to disenfranchise those prisoners who value the right to vote. To summarise I firstly argued that most prisoners do not value the right to vote and this means we no reason to change the status quo and give them this right. Secondly I argued that for those prisoners, who do value the right to vote, disenfranchisement might be justified as punishment.

Someone might object to my argument by pointing out it has been framed in consequentialist terms and the question of prisoner voting rights is a matter of fundamental human rights. I accept human beings have certain rights, see my posting of 07/10, but I am unhappy about using the term fundamental with regard to rights. Some rights are universal and apply to all human beings others are more restrictive, such as the rights of the members of a golf club. For instance I would argue we have a right not to be treated with unnecessary cruelty simply because we can feel pain but then animals must also have this right. Perhaps this right might be regarded as a universal right for all sentient creatures. In addition we have a right not to be treated as a means by others. Perhaps this right is universal for all potential autonomous creatures living among autonomous creatures. The domain of rights holders for this right is more restricted than for the domain of the right not to be treated with unnecessary cruelty. Lastly we have a right to vote because we are part of a democratic society. The domain of rights holders for the right to vote is further restricted. I would suggest it follows that someone’s right to vote is not a fundamental right based on him being a human being, but is based on him being part of a democratic society. Indeed the idea that our hunter gatherer ancestors had fundamental right to vote is nonsensical. Rights evolved as rights upholders’ ideas and their society changed and as a result different rights may have different origins. Because rights have different origins there is a wide variation in the domain of rights holders.

If we accept that the right to vote depends on us being part of democratic society then does this imply that in such a society prisoners should retain this right? It has been suggested above that prisoners see themselves as only living in rather than being part of a democratic society. I would further suggest prisoner’s behaviour shows that they do indeed see themselves as living in society rather than being part of society as they either intentionally damage society or fail to see their actions as damaging to society. It follows if prisoner’s only live in a society rather than being part of that society that they should not retain the right to vote. After all most foreigners living in a country are not usually considered as citizens and as a result do not have the right to vote even if they are law abiding and contribute to the general good by paying taxes.

I now want to consider some objections to the above. Firstly someone might suggest that many people who never offend see themselves as living in rather than being part of our society and yet still retain the right to vote. For instance people who live solely on benefits and contribute nothing to society. Nobody would seriously suggest we should disenfranchise such people. My objector might then argue if we treat these people differently from prisoners that we are acting unjustly. I would not accept my objector’s argument for two reasons. Firstly many people who contribute nothing to society financially contribute in other ways. Secondly I would argue all those who obey the law contribute to society simply by respecting the rights of others. However how much individuals contribute to society varies. Prisoners serving their sentences do not contribute to society in any other way and by offending have demonstrated that they do not respect the rights of others. My objector might now point most prisoners are not murderers or rapists but minor criminals many of whom simply snort, smoke and inject drugs in the hope of improving their happiness. I would respond by simply pointing out being inadequate may be the reason many prisoners live in society rather than being part of it and as a result gives us no reason to ensure they have the right to vote. Next my objector might suggest that giving prisoners the vote sends them a message. The message we send is that we see them as being part of society even if they don’t. But why should we send them such a message? My objector might respond by suggesting such a message can play a part in their rehabilitation by encouraging them to become part of society. I would respond by suggesting that this would be the wrong message and that disenfranchisement sends a better message that respect for the law is the minimum needed to be considered as part of society.

Lastly my objector might suggest that my argument should apply to all offenders rather than just those sent to prison. If we disenfranchise offenders who are sent to prison but not those offenders who are subject to different punishments such as fines then we are acting unjustly. I believe this objection carries some real weight. My argument depends on the assumption that prisoners see themselves as living in society rather than being part of it. My objector might now point out my assumption should apply to all offenders. She might argue that it follows drivers who are fined for speeding should also be disenfranchised for a period because they see themselves as living in rather than being part of society. Clearly most speeding drivers do see themselves as part of society rather than merely living in it. Perhaps then my assumption is false and some prisoners do see themselves as part of society rather than merely living in it. I accept the above objection and accept all offenders, except perhaps sociopaths, see themselves to some degree as part of society. However I would suggest there is a continuum in this degree ranging from sociopaths to speeders. I might then modify my argument and base it on the assumption that at below some point on this continuum offenders don’t see themselves as enough as part of society to be fully regarded as members of society. I suggest this point might be when offenders directly damage other members of society. The prime purpose of society is to protect its members against unwarranted damage and clearly offenders who directly damage other members of society do not respect society. I might then argue prisoners fall below this point and as a result should remain disenfranchised whilst most other offenders will be above this point and should not.

Does my modified argument provide some justification for my intuitions? I’m not sure and am now somewhat ambivalent about prisoner disenfranchisement. Perhaps I’m just using reflection to bolster my intuitions rather than possibly changing them, like Haidt (1) suggests most people do.

1.      Jonathan Haidt, 2012, The Rightous Mind, Allen Lane, chapter 2.